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CASE  OF  THE  SLAVE-CHILD,  MED. 


I 


REPORT 

OF  THE 

ARGUMENTS  OF  COU 

AND  OF  THE 

OPINION  OF  THE  COURT, 

IN  THE  CASE  OF 


COMMONWEALTH  w.  AYES; 


TRIED  AND  DETERMINED  IN  THE 


SUPREME  JUDICIAL  COURT  OF  MASSACHUSETTS. 


BOSTON : 

PUBLISHED  BY  ISAAC  KNAPP, 
46,  WASHINGTON  STREET. 


1836. 


MED’S  CASE. 


PETITION  FOR  THE  WRIT  OF  HABEAS 
CORPUS. 

To  the  Honorable  Justices  of  the  Supreme  Judicial 

Court  : 

The  petition  of  Levin  H.  Harris,  of  Boston  in 
the  County  of  Suffolk,  Mariner,  respectfully 
represents,— That  a  certain  female  colored  child 
named  Med,  of  New  Orleans  in  the  State  of 
Louisiana,  an  infant  under  the  age  of  twenty-one 
years,  is  now  unlawfully  restrained  of  her  liberty 
by  Thomas  Aves  of  said  Boston,  Watchman. 

Your  petitioner  represents  that  he  has  been  in¬ 
formed  and  verily  believes  that  the  said  Med  is 

claimed  as  a  slave,  by - Slater  of  said  New 

Orleans  ;  that  she  was  brought  from  New  Or¬ 
leans  to  said  Boston  by  the  consent  of  said  Slater, 
by  Mrs.  Slater,  his  wife  ;  that  the  said  Aves  now 
keeps  the  said  Med  confined  in  his  house,  No. 
21,  Pinckney  Street,  in  said  Boston,  by  the  request 
of  the  said  Mrs.  Slater,  in  order  that  the  said 
Mrs.  Slater  may  carry  her,  the  said  Med  back  to 
said  New  Orleans,  as  a  slave.-— And  your  peti¬ 
tioner  fears  that  the  said  Med,  who  is  free  by  the 
law  of  Massachusetts,  may  be  unlawfully  carried 
back  to  New-Orleans,  and  there  made  a  slave, 
unless  this  honorable  Court  will  interfere  for  her 
protection. 

Wherefore  your  petitioner  prays,  that  your 
honors  will  grant  a  writ  of  habeas  corpus,  to  bring 
the  said  Med  before  you,  and  to  compel  the  said 
Aves  to  shew  the  cause  of  her  detention. 

Your  petitioner  applies  in  behalf  of  the  said 
Med,  who  is  about  six  years  old,  not  knowing 
that  the  said  Med  has  any  relative  in  this  place. 

L.  H.  HARRIS. 

Boston,  August  16, 1836. 


WRIT  OF  HABEAS  CORPUS. 

Commonwealth  of  Massachusetts. 

-**###*#* 

|  J  To  the  Sheriffs  of  our  several  coun- 

S  L.  S.%  ties  and  their  respective  deputies, 

*  *  Greeting. 

-if##*#### 

We  command  you  that  the  body  of  Med,  of 
New  Orleans,  in  the  State  of  Louisiana,  a  color¬ 
ed  female  under  the  age  of  twenty-one  years,  by 
Thomas  Aves  of  Boston,  in  our  County  of  Suf¬ 
folk,  Watchman,  imprisoned  and  restrained  of  her 
liberty,  as  it  is  said,  you  take  and  have  before  me 
S.  S.  Wilde,  a  Justice  of  our  Supreme  Judicial 
Court,  at  the  Court  house  in  Boston,  immediately 
after  the  receipt  of  this  writ,  to  do  and  receive 
what  our  said  Justice  shall  then  and  there  con¬ 
sider,  concerning  her  in  this  behalf ;  and  sum¬ 
mon  the  said  Thomas  then  and  there  to  appear 
before  our  said  Justice,  to  shew  the  cause  of  the 
taking  and  detaining  of  the  said  Med,  and  have 
you  there  this  writ,  with  your  doings  thereon. 

Witness,  S.  S.  Wilde  at  Boston,  this  17th 
day  of  August,  in  the  year,  one  thousand  eight 
hundred  and  thirty -six. 

S.  S.  WILDE,  J.  S.  J.  Court. 


Suffolk  ss.  Boston,  17th  August,  1836.  In 
obedience  to  this  writ,  I  have  here  before  the 
Court  the  body  of  the  within  named  Med,  and 
have  summoned  the  within  named  Thomas  Aves 
to  appear  and  shew  the  cause  of  the  detaining  of 
the  said  Med,  by  reading  this  writ  in  his  presence 
and  hearing,  and  by  giving  to  him  in  hand  an  at¬ 
tested  copy  thereof. 

H.  H.  HUGGEFORD,  Deputy  Sheriff. 


RETURN  TO  THE  WRIT. 
Commonwealth  of  Massachusetts. 

Suffolk,  ss.  ) 

August  Eighteenth,  A.  D.  1836.  $ 

And  now  the  said  Thomas  Aves  makes  his  re¬ 
turn  of  the  said  Writ,  and  states  herein  that  he 


Commonwealth  of  Massachusetts. 

Suffolk  ss.  Boston,  August  16,  1836.  Then 
personally  appeared  the  above  named  Levin  H. 
Harris,  and  swore  that  the  facts  stated  in  the  fore¬ 
going  petition  were  true  to  the  best  of  his  belief 
and  knowledge : — 

Before  me, 

ELLIS  GRAY  LORING, 
Justice  of  the  Peace. 


r  A  Pi  f)  A  « 

law  libr, 


4 


Med’s  Case. 


lias  the  body  of  the  child  named  therein  in  his 
custody  :  That  Samuel  Slater  of  the  City  of  New 
Orleans  in  the  State  of  Louisiana,  Merchant,  a 
citizen  of  the  said  State  of  Louisiana,  domiciled 
at  and  resident  in  the  said  City  of  New  Orleans, 
on  or  about  the  first  day  of  June  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  thirty 
three,  or  at  some  time  during  that  year,  in  the  said 
City  of  New  Orleans,  purchased  the  said  child 
and  its  mother  as  and  for  his  Slaves,  the  said 
mother  being  then  and  there  and  long  before  that 
time  a  slave  by  the  Laws  of  the  said  State  of 
Louisiana,  and  the  said  child  by  the  same  Laws 
being  then  and  there  a  slave  and  having  been 
born  in  a  state  of  slavery.  That  from  and  after 
the  time  when  the  said  child  was  so  purchased, 
and  until  on  or  about  the  first  day  of  May  now 
last  past,  the  said  mother  and  child  continued  and 
remained  the  slaves  of  the  said  Samuel  Slater  in 
the  said  City  of  New  Orleans,  and  by  force  of 
the  Laws  of  the  State  of  Louisiana  aforesaid. 
That  on  or  about  the  day  and  year  last  aforesaid, 
Mary  Slater,  the  lawful  wife  of  the  said  Samuel 
Slater,  left  the  said  City  of  New  Orleans  for  the 
purpose  of  coming  to  the  City  of  Boston  in  this 
Commonwealth  and  visiting  the  said  Thomas 
Aves,  her  father,  intending  to  return  to  the  said 
City  of  New  Orleans,  and  to  her  said  husband, 
who  remained  in  the  said  City  of  New  Orleans, 
after  an  absence  of  four  or  five  months  for  the 
purpose  aforesaid.  That  the  said  mother  remain¬ 
ed  behind  in  the  said  City  of  New  Orleans,  in 
the  said  state  of  slavery,  then  and  still  being  the 
property  of  the  said  Samuel  Slater  by  the  Laws 
of  the  said  state  of  Louisiana: — That  the  said 
Mary  Slater  brought  the  said  child  with  her  from 
the  said  City  of  New  Orleans  to  the  said  City  of 
Boston,  having  and  retaining  the  said  child  in  her 
custody  as  the  agent  and  representative  of  her 
said  husband,  whose  slave  the  said  child  was  by 
the  Laws  of  the  said  State  of  Louisiana,  when 
the  6aid  child  was  brought  away  from  the  said 
State  of  Louisiana  by  the  said  Mary  Slater ;  The 
object,  intent  and  purpose  of  the  said  Mary  Sla¬ 
ter  being  to  have  the  said  child  accompany  her 
and  remain  in  her  custody  and  under  her  care 
during  her  said  temporary  absence  from  the  said 
City  of  New  Orleans,  and  that  the  said  child 
should  return  with  her  to  the  said  City  of  New 
Orleans,  the  legal  domicil  of  the  said  Mary  Sla¬ 
ter  and  of  the  said  child.  That  the  said  child 
was  confided  to  the  custody  and  care  of  the  said 


Thomas  Aves  by  the  said  Mary  Slater,  to  be  by 
him  kept  and  nurtured  during  the  absence  of  the 
said  Mary  Slater  from  the  said  City  of  Boston  for 
a  few  days,  she  having  gone  to  Roxbury  in  the 
County  of  N orfolk,  there  to  remain  for  that  period 
on  account  of  ill  health.  And  the  said  Thomas 
Aves  further  states  that  by  the  Laws  of  the  said 
State  of  Louisiana  the  marriage  of  a  slave  is  in 
law  wholly  void.  That  this  child  is  the  daughter 
of  a  slave,  born  in  a  state  of  slavery,  and  is  by 
force  of  the  Laws  of  the  same  State  of  Louisiana 
a  natural  child.  That  by  virtue  of  the  same  Laws 
of  the  State  of  Louisiana  the  mother  of  a  natural 
child  is  its  legal  guardian  ;  and  that  such  right  of 
guardianship  over  the  infant  children  of  a  slave, 
where  such  children  are  not  themselves  slaves, 
devolves  upon  the  owner  of  the  mother  of  such 
infant  children.  That  if  the  said  child  is  by  force 
of  the  Laws  of  Massachusetts,  now  emancipated 
and  a  free  person,  that  the  said  Samuel  Slater,  as 
the  owner  of  the  mother  of  this  natural  child  is 
entitled  to  the  custody  of  the  person  of  this  child 
as  its  legal  guardian,  and  that  he  the  said  Thomas 
Aves  is  the  agent  and  legally  authorised  repre¬ 
sentative  of  the  said  Samuel  Slater  in  this  behalf. 

And  the  said  Thomas  Aves  further  states  that 
the  said  child  is  an  infant  of  the  age  of  six  years 
or  thereabouts  and  wholly  incapable  of  taking 
care  of  herself.  That  it  is  absolutely  necessary 
that  some  person  should  have  the  custody  of  the 
person  of  the  said  infant  child,  and  the  right  to  re¬ 
strain  it  of  its  liberty.  That  no  private  person  or 
magistrate  has,  by  the  Laws  of  Massachusetts, 
any  right  to  take  the  said  child  out  of  his  posses¬ 
sion,  while  the  said  Thomas  Aves  continues  to 
use  that  possession  and  custody,  only  for  the  pur¬ 
pose  of  benefiting  the  said  child,  and  only  re¬ 
straining  it  of  its  liberty,  so  far  as  is  necessary 
for  the  safety  and  health  of  the  said  child.  That 
he,  the  said  Thomas  Aves,  does  not  now,  and  has 
not  at  any  time,  restrained  the  said  child  of  its 
liberty,  in  any  other  way,  or  to  any  greater  ex¬ 
tent,  than  is  necessary  for  the  health  and  safety 
of  the  said  child. 

THOS.  AVES. 


Suffolk  ss.  Aug.  18,  1836. 

Sworn  to  before  me. 

BENJ’N  R.  CURTIS, 
Justice  of  Peace. 


ARGUMENTS  OF  COUNSEL. 


BENJAMIN  R.  CURTIS,  ESQ.,  FOR  THE  RESPONDENT. 


May  it  please  your  Honors : 

In  the  argument  which  I  am  about  to  address  to 
the  Court,  I  shall  endeavor  to  maintain  the  following 
proposition  : 

That  a  citizen  of  a  slaveholding  state,  who  comes 
to  Massachusetts  for  a  temporary  purpose  of  busi¬ 
ness  or  pleasure,  and  brings  his  slave,  as  a  personal 
attendant  on  his  journey,  may  restrain  that  slave, 
for  the  purpose  of  carrying  him  out  of  the  state,  and 
returning  him  to  the  domicil  of  his  owner. 

This  proposition  is  broad  enough  to  cover  the  case 
before  the  Court.  If  the  owner,  under  such  circum¬ 
stances,  has  a  right  to  restrain  his  slave  for  the  pur¬ 
pose  of  removing  him  to  his  domicil,  then  the  custody 
of  the  respondent,  in  this  case,  is  a  lawful  custody, 
and  the  child  can  not  be  discharged  from  it. 

I  shall  make  two  points  in  support  of  this  proposi¬ 
tion. 

I.  That  this  child,  by  the  laws  of  the  State  of  Lou¬ 
isiana,  is  now  a  slave. 

II.  That  the  Law  of  Massachusetts  will  so  far  re¬ 
cognise  and  give  effect  to  the  Law  of  Louisiana,  as  to 
allow  the  master  to  exercise  this  qualified  and  limit¬ 
ed  power  over  his  slave. 

The  first  point  is  free  from  all  difficulty.  It  is  per¬ 
fectly  clear  that  this  child,  being  a  slave  by  the  laws 
of  the  State  of  Louisiana,  and  having  left  that  State 
only  for  a  temporary  purpose,  is  a  slave  now,  by  the 
laws  of  Louisiana.  She  has  not  been  emancipated  by 
coming  into  a  state  where  slavery  is  not  recognised 
by  the  Law.  And  the  moment  she  returns  again, 
either  to  Louisiana,  or  any  other  state  or  county 
where  slavery  is  a  legal  institution,  the  right  of  the 
master  would  he  recognised  as  still  subsisting,  and  as 
having  always  subsisted,  and  would  be  enforced, 
without  the  least  diminution  on  account  of  the  tem¬ 
porary  residence  of  the  slave  in  a  non-slaveholding 
state.  We  need  look  only  to  a  decision  of  the  Courts 
of  the  State  of  Louisiana,  to  be  satisfied  that  such  is 
the  law  of  that  State. 

In  a  case  reported  in  the  14  Martin’s  Reports  405, 
the  question  came  before  the  Court,  whether  a  slave, 
who  had  been  removed  into  the  North  Western  Ter¬ 
ritory,  and  domiciled  there,  was  still  a  slave  on  his 
return  to  Louisiana.  The  North  Western  Territory 


being  under  the  government  of  the  celebrated  ordi¬ 
nance  of  Mr.  Dane,  was  of  course  a  non-slaveholding 
territory;  and  the  court  held,  that,  as  the  slave  had 
gained  a  domicil  in  that  territory,  he  was  thereby 
emancipated.  But  it  is  hardly  possible  to  read  the 
judgment  of  the  learned  Court  in  the  case,  without 
perceiving  that  their  decision  would  have  been  against 
the  freedom  of  the  complainant,  if  he  had  gone  into 
the  Territory  only  for  a  temporary  purpose.  If  we 
look  at  the  reports  of  the  decisions  of  other  courts,  we 
shall  find  that  this  very  point  has  been  repeatedly 
decided. 

In  a  case  reported  in  2  Marshall’s  Kentucky  Re¬ 
ports,  467,  the  Court  of  Appeals  in  Kentucky,  at  that 
time  composed  of  some  very  eminent  judges, decided 
that  a  slave,  who  was  carried  by  his  master  into  the 
North  Western  Territory  for  a  temporary  purpose, 
was  still  a  slave  on  his  return  to  Kentucky.  The 
learned  counsel  on  the  other  side  may  perhaps  not  be 
inclined  to  give  entire  credit  to  these  decisions,  be¬ 
cause  they  were  made  in  slave  states,  but  I  will  now 
refer  your  Honors  to  a  decision  of  this  point  made  by 
one  of  the  greatest  judges  who  ever  sat  on  any  bench 
in  any  country,  and  who  will  not  be  suspected  of  any 
undue  bias  in  favor  of  this  institution. 

In  the  matter  of  the  slave  Grace, (1)  Lord  Sfowell,  sit¬ 
ting  in  the  High  Court  of  Admiralty,  decided  that 
Grace,  a  female  slave,  who  accompanied  her  mistress 
from  Antigua  to  England,  and  resided  there  six 
months,  was  a  slave  on  her  return  to  Antigua.  That 
although  the  rights  of  the  mistress  over  the  slave 
were  suspended,  while  in  England,  because  the  Eng¬ 
lish  Common  Law  provided  no  means  of  enforcing 
those  rights,  yet  they  existed,  and  might  be  exercised 
and  enforced,  on  the  return  of  the  slave  to  Antigua. 
I  have  only  to  add  to  the  authorities  which  I  have  ci¬ 
ted,  the  fact,  that  I  have  not  found  any  thing  in  the 
books,  which  at  all  conflicts  with  them,  and  therefore 
I  think  I  was  warranted  in  saying  that  in  the  first 
point  there  is  no  difficulty  ;  that  this  child  is  now  a 
slave  by  the  law  of  Louisiana  ;  and  that  whether  the 
rights  of  the  master  are  partially,  or  entirely  suspend- 

(1)  2  Haggard’s  Admiralty  Reports,  94. 


6 


H  5  Q  9  A 

t-J  »  j;  (1 


1M  LIBRARY 


6 


Benjamin  R.  Curtis,  Esq.,  for  the  Respondent. 


ed,  by  coming  into  our  territory,  those  rights  are  still 
in  existence,  and  would  be  recognised  and  enforced 
by  the  law  of  the  domicil  of  the  master  and  the  slave. 
I  proceed  therefore  to  consider  the  second  point: — 

That  the  Law  of  Massachusetts  will  so  far  recog¬ 
nise  and  give  effect  to  the  Law  of  Louisiana,  as  to  al¬ 
low  the  master  to  exercise  the  qualified  and  limited 
right  over  his  slave,  which  is  claimed  in  this  case. 

Before  I  proceed  to  discuss  this  question,  I  shall 
submit  to  your  Honors,  that  it  is  competent  for  this 
Court  to  decide  it.  No  legislation  is  necessary.  It 
is  the  proper  province  of  this  Court,  to  determine 
whether  any,  and  what  effect,  is  to  be  given  to  the 
law  of  another  state,  within  our  own  territory.  I  re¬ 
fer  your  Honors  to  Story’s  Conflict  of  Laws.  (1)  The 
learned  author  is  here  considering  how  the  rule  as  to 
foreign  laws  is  to  be  promulgated  ;  whether  it  should 
be  done  by  the  Legislature,  or  the  Judicial  power. 
He  says  ‘  In  England  and  America,  the  Courts  of 
Justice  have  hitherto  exercised  the  same  authority,’ 
(that  is,  the  authority  in  question,)  ‘  in  the  most  am¬ 
ple  manner;  and  the  Legislature  has  in  no  instance, 
(it  is  believed,)  in  either  country,  interfered  to  pro¬ 
vide  any  positive  regulations.  The  common  law  of 
both  countries  has  been  expanded,  to  meet  the  exer- 
gencies  of  the  times,  as  they  have  arisen;  and  so  tar 
as  t’ne  practice  of  nations,  and  the  jus  gentium  pri¬ 
vatum,  has  been  supposed  to  furnish  any  general 
principle,  it  has  been  followed  out,  with  a  wise  and 
inanly  liberality.’ 

So  Ch.  Jus.  Parker,  in  Blanchard  v.  Russell,  (2) 
says,  ‘  As  the  laws  of  foreign  countries  are  not  admit¬ 
ted  ex  proprio  vigors,  but  only  ex  comitate,  the  ju¬ 
dicial  power  will  exercise  a  discretion,  with  respect 
to  the  laws  they  may  be  called  upon  to  sanction.’ 
And  the  same  doctrine  substantially,  was  laid  down 
by  Lord  Stowell.  (3) 

It  is  clear,  therefore,  that  it  is  competent  for  the 
Court  to  decide  the  question  which  we  present  to 
them. 


I  now  ask  your  Honors’  attention  to  what  I  think  ii 
the  principal  question  in  the  case  before  you.  It  car 
not  be  denied,  that  the  general  principles  of  interna 
tional  law  are  broad  enough  to  cover  this  case.  1 
shall  consider  presently,  whether  the  case  comei 
within  any  exception  to  those  general  rules.  What  1 
now  wish  to  prove  is,  that  the  case  is  within  certair 
general  rules,  unless  it  is  to  be  excepted  out  of  them 
Slaves  are  looked  upon  in  all  codes,  I  believe,  ir 
two  lights,  as  persons,  and  as  property.  What  is  the 
general  rule  of  international  law,  applicable  to  then 


(1)  p.  25. 

(2)  13  Mass.  Rep.  6. 

(3)  2  Haggard’s  Con.  Rep.  59. 


as  persons  ?  Qualitas personam  sicut  umbra  sequitur, 
is  a  rule  found  in  all  the  principal  writers  on  this 
branch  of  the  law.  ‘  Personal  capacity  or  incapacity, 
attached  to  a  party  by  the  law  of  his  domicil,  is  deem¬ 
ed  to  exist  every  where,  so  long  as  his  domicil  re¬ 
mains  unchanged,  even  in  relation  to  transactions  in 
a  foreign  country,  where  they  might  otherwise  be 
obligatory.’  (4)  ‘  We  always  import,’  (says  L.  Ellen- 

borough  in  the  case  of  Potter  vs.  Brown.)  (5)  ‘  togeth¬ 
er  with  their  persons,  the  existing  relations  of  for¬ 
eigners  as  between  themselves,  according  to  the  laws 
of  their  respective  countries,  except  indeed  where 
those  laws  clash  with  the  rights  of  our  own  subjects 
here.’ 

If  we  consider  the  rules  applicable  to  slaves  as  the 
property  of  foreigners,  we  shall  find  them  to  be  equal¬ 
ly  decisive. 

Pothier,  after  remarking  that  moveable  property 
has  no  locality,  adds  that  *  all  things,  which  have  no 
locality,  follow  the  person  of  the  owner,  and  are  con¬ 
sequently  governed  by  the  law,  or  custom  which  gov¬ 
erns  his  person,  that  is  to  say  by  the  law  of  the  place 
of  his  domicil.’  And  I  refer  your  Honors  to  the  work 
which  I  have  already  so  often  cited,  and  which  eve¬ 
ry  one  must  cite  who  touches  upon  a  subject  which 
the  distinguished  author  has  treated  with  such  learn¬ 
ing  and  ability,  Story’s  Conflict  of  Laws,  (6)  where 
numerous  authorities  on  this  rule  are  collected.  I 
submit  to  your  Honors  that  this  rule  has  a  more  ex¬ 
tensive  application,  than  merely  to  regulate  the  forms 
of  transfer,  or  the  order  of  succession  to  personal  prop¬ 
erty.  Thus  to  limit  its  effect,  would  he  to  stop  far 
short  of  its  real  meaning,  and  I  may  add  far  short  of 
the  effect  which  it  has  been  allowed  to  have.  It 
means,  that  a  right  to  a  moveable  thing,  acquired  in 
one  country  under  its  laws,  ought  not  to  be,  and  is  not 
divested  by  removing  that  thing  into  another  country. 
And  here  again  I  must  refer  the  Court  to  the  Com¬ 
mentaries  on  the  Conflict  of  Laws.  (7)  There  is 
another  view  which  may  be  taken  of  this  principle, 
by  which  its  justice  and  expediency  will  clearly  ap¬ 
pear.  ‘  Even  the  properly  of  individuals,’ says  Vat- 
tel  (8)  ‘  is,  in  the  aggregate,  to  be  considered  as  the 
property  of  the  nation,  in  respect  to  oilier  states.  It 
in  some  sort  really  belongs  to  her,  from  the  right  she 
has  over  the  property  of  her  citizens,  because  it  con¬ 
stitutes  a  part  of  the  sum  total  of  her  riches,  and  aug¬ 
ments  her  power.  She  is  interested  in  that  property 
by  herobligation  to  protect  all  her  citizens.  In  short 
it  cannot  be  otherwise,  since  nations  act  and  treat  to- 

(4)  Story’s  Conflict  of  Laws,  64. 

(5)  5  East  R.  130. 

(6)  p.  209,  312,  213. 

(7)  p.  334,  335,  336. 

(8)  p.  16S. 


7 


Benjamin  R.  Curtis,  Esq.,  for  the  Respondent. 


gether  as  bodies,  in  their  quality  of  political  societies, 
and  are  considered  as  so  many  moral  persons.  All 
those  who  form  a  society,  a  nation,  being  considered 
by  foreign  nations  as  constituting  one  whole,  one  sin¬ 
gle  person — all  their  wealth  together  can  only  be  con¬ 
sidered  as  the  wealth  o(  that  same  person.  Its  do¬ 
mestic  relations  make  no  change  in  its  rights  with  re¬ 
spect  to  foreigners,  nor  in  the  manner  in  which  they 
ought  to  consider  the  aggregate  of  its  property,  in 
what  way  soever  it  is  possessed.’  He  then  goes  on, 
to  deduce  from  this  principle,  certain  rules  of  the  law 
of  nations,  which  are  fairly  deducible  from  it,  and 
are  now  well  settled,  and  among  others  the  following. 
*  The  property  of  an  individual  does  not  cease  to  be¬ 
long  to  him,  on  account  of  his  being  in  a  foreign  coun¬ 
try  ;  it  still  constitutes  a  part  of  the  aggregate  wealth 
of  his  nation.  Any  power  therefore,  which  the  lord 
of  the  territory  might  claim  over  the  property  of  a 
foreigner,  would  be  equally  derogatory  to  the  rights 
of  the  individual  owner  and  to  those  of  the  nation,  of 
which  he  is  a  member.’  The  rule  on  which  we  re¬ 
ly,  is  therefore,  deducible  from  this  great  principle  of 
the  law  of  nations,  and  I  need  not  say,  that  the  ap¬ 
plication  of  this  principle  to  the  citizen  of  one  of  our 
sister  states  is,  to  say  the  least,  quite  as  just  and  poli¬ 
tic,  as  to  the  citizen  of  a  foreign  country. 

I  submit  to  the  Court  then,  that  by  the  general 
rules  of  international  law,  whether  we  consider  this 
slave  as  a  person,  or  as  property,  the  rights  of  the 
master,  acquired  under  the  law  of  the  domicil,  are  to 
be  recognised  and  preserved,  unless  there  is  some¬ 
thing  in  this  case,  which  excepts  it  out  of  those  gen¬ 
eral  rules.  I  proceed  therefore  to  enquire,  whether 
there  is  any  exception  to  these  rules,  applicable  to 
this  case. 

There  are  two  well  settled  exceptions,  and  only 
two,  that  I  have  been  able  to  discover.  The  foreign 
law  is  not  allowed  any  effect: 

I.  When  it  would  work  injury  to  the  state,  or  its 
citizens. 

II.  When  the  law  is  in  itself  immoral.  (1) 

In  the  case  of  Greenwood  vs.  Curtis,  (2)  Ch.  Jus. 
Parsons  states  these  exceptions  in  somewhat  different 
terms,  though  substantially  there  is  rio  difference. 
He  says  there  are  two  exceptions.  ‘  One  is  when  the 
Commonwealth,  or  its  citizens,  may  be  injured  by 
giving  effect  to  a  foreign  law.  The  second  is,  where 
the  giving  effect  to  a  foreign  law  would  exhibit  to 
our  own  citizens,  an  example  pernicious  and  detest¬ 
able.’ 

I  shall  endeavor  to  maintain  that  it  would  work  no 


injury  to  the  state  or  its  citizens,  to  give  to  the  law  of 
Louisiana  the  qualified  and  limited  effect  which  we 
ask  for  in  this  case,  and  secondly  that  slavery  is  not 
immoral.  Before  I  proceed  to  speak  to  these  points, 
I  feel  obliged  to  anticipate  an  objection,  which  will 
undoubtedly  be  pressed  by  the  learned  counsel  for  the 
petitioner,  and  which  certainly  comes  from  high  au¬ 
thority. 

‘  The  difficulty  of  adopting  the  relation,  without 
adopting  it  in  all  its  consequences,  is  indeed  extreme  ; 
and  yet,  many  of  those  consequences  are  absolutely 
contrary  to  the  municipal  law  of  England.  We  have 
no  authority  to  regulate  the  conditions,  in  which  law 
shall  operate.’ — Lord  Mansfield,  in  the  case  of  Som- 
mersett. 

It  will  be  urged,  that  though  we  claim  to  exercise 
only  a  qualified  and  limited  right  over  the  slave,  viz 
the  right  to  remove  him  from  the  state,  yet,  if  this  ii 
allowed,  all  the  rights  of  the  master  must  be  allowed 
That  the  same  foreign  law,  which  gives  the  master  a 
right  to  remove  the  slave  from  place  to  place,  gives 
him  a  right  to  his  labor,  and  to  compel  him  to  labor; 
and  that  if  this  foreign  law  is  recognised  at  all,  full 
effect  must  be  given  to  it,  and  thus  slavery  will  be 
introduced  into  the  Commonwealth. 

To  this  I  answer : 

1st.  There  is  no  practical  difficulty ,  in  giving  this 
qualified  effect  to  the  Law  of  Louisiana.  The  Con¬ 
stitution  of  the  United  States  has  settled  this  ques¬ 
tion.  That  provides  for  and  secures  to  the  master  the 
exercise  of  his  right,  to  the  precise  extent  claimed  in 
this  case. 

2d.  Neither  is  there  any  theoretical  difficulty.  Not 
to  refer  again  to  the  Constitution,  which  being  posi¬ 
tive  law,  may  be  supposed  to  eut  a  theoretical  knot,  I 
think  l  can  show  that  English  Judges,  since  Lord 
Mansfield’s  day,  have  not  found  this  difficulty  insur¬ 
mountable,  even  in  regard  to  this  very  relation  of  sla¬ 
very. 

Several  cases  have  occurred  in  the  High  Court  of 
Admiralty  in  England,  where  ships  of  other  nations, 
engaged  in  the  slave  trade,  have  been  captured  by 
British  cruisers,  and  brought  in  for  condemnation.  In 
the  cases  where  the  slave  trade  was  forbidden  by  the 
laws  of  the  nation,  to  which  the  vessel  belonged,  they 
were  condemned.  In  other  cases,  where  the  slave 
trade  was  lawful  by  the  laws  of  the  nation  to  which 
the  vessel  belonged,  the  vessel  and  slaves  were  re¬ 
stored  to  their  owners.  The  court  looked  to  the  for¬ 
eign  law.  If,  by  that  law,  the  owners  of  the  vessels 
could  acquire  a  property  in  the  slaves,  that  property 
was  respected  and  the  slaves  were  given  up.  Now 
here  the  relation  between  master  and  slave,  which 
existed  by  the  foreign  law,  was  recognised  by  the 
English  law,  and  effect  given  to  it,  so  far  as  to  allow 


(1)  Story’s  Con.  Laws  96.  2  Kent’s  Com.  39. 

f2)  6  Mass.  Rep.  378. 


8 


Benjamin  Ii.  Curtis,  Esq.,  for  the  Respondent. 


the  owner  to  remove  tliem.(l)  So  in  lire  case  of  Mad- 
razo  v.  Willes,  (2)  a  British  cruiser  captured  a  Span¬ 
ish  slave  ship,  and  the  Court  of  Kings  Bench  allowed 
the  owner  to  recover  of  the  Captain  £30,000  for  the 
loss  of  his  slaves.  Here  also  was  a  strong  recogni¬ 
tion  of  the  relation  between  master  and  slave,  and 
an  important  effect  given  to  that  relation.  But  I  sup¬ 
pose  that  the  judges  who  decided  those  cases  would 
have  been  greatly  surprised,  if  they  had  been  told 
that,  by  recognizing  the  right  of  the  master  over  his 
slave  to  any  extent,  they  had  in  effect  recognized  it 
for  all  intents  and  purposes  whatsoever  ;  and  that  they 
had  thereby  introduced  slavery  into  England.  I  re¬ 
fer  the  court  also  to  the  case  Emerson  v.  Howland, (3) 
for  a  decision  made  in  this  Commonwealth,  founded 
upon  the  same  principles  as  the  case  in  3  Barn,  and 
Aid. 


There  is  a  decision  of  Chief  Justice  Reed  of  Lower 
Canada,  (4)  which  throws  light  on  this  point.  The 
case  was  as  follows  :  A  citizen  of  the  State  of  Ver¬ 
mont  committed  a  larceny  there,  and  fled  into  Caua- 
da.  The  executive  of  the  State  of  Vermont  request¬ 
ed  the  Governor  of  that  province  to  deliver  up  the 
fugitive.  The  Governor  caused  the  thief  to  be  ar¬ 
rested,  and  thereupon  a  habeas  corpus  was  sued  out, 
and  the  man  was  brought  before  the  Chief  Justice. 
In  a  very  learned  and  elaborate  opinion,  the  Judge  de¬ 
cided  that  it  was  a  proper  exercise  of  the  executive 
power,  not  only  consistent  with  tho  laws  of  nations, 
but  required  by  national  comity,  to  deliver  up  the 
delinquent  to  the  authorities  of  the  State  of  Vermont. 
Now  why  did  not  the  Chief  Justice  say,  that  the 
crime  committed  by  the  thief  being  an  infringement 
of  a  foreign  law,  it  that  law  was  recognised  at  all,  it 
must  be  recognised  to  its  full  extent ;  if  any  effect 
should  be  given  to  it,  full  effect  must  be  given  to  it. 
That  the  State  of  Vermont  had  the  same  right  to  try, 
condemn  and  punish  the  thief  that  they  had  to  re¬ 
move  him  ;  and  as  the  Governor  of  Canada  could 
never  permit  the  State  of  Vermont  to  exercise  all 
these  rights  within  his  territory,  he  could  not  recog¬ 
nise  their  light  at  all,  nor  permit  the  least  interfer¬ 
ence  with  the  liberty  of  the  fugitive,  while  on  the 
soil  of  Canada.  I  am  unable  to  perceive  why  such  a 
course  of  reasoning  would  not  have  been  equally  ap¬ 
plicable  to  that  case,  as  to  the  ease  at  bar.  And  the 
answer  there,  as  here,  is,  that  although  the  rights 
arising  under  a  foreign  law,  and  properly  exercisable 


(1)  The  Amedie,  I  Acton’s  R.  240. 
Dodson  80.  The  Diana,  1  Dodson’s 
Louis,  2  Dodson’s  R.  238. 


Fortuna,  1 
R.  93.  The 


(2)  3  Barnwell  and  Alderson,  338. 

(3)  1  Mason’s  R.  45. 

(4)  Reported  in  1  American  Jurist,  297. 


on  such  foreign  territory,  cannot,  consistently  with 
our  domestic  policy,  be  exercised  on  our  own  territo¬ 
ry,  yet  that  is  no  reason  why  we  should  not  allow  the 
foreigner  to  remove  the  subject  of  those  rights  to  his 
own  territory,  there  to  do  what  his  law  requires  or 
allows. 

The  question  in  both  cases  is,  whether  national 
comity  requires  the  nation  where  the  subject  of  the 
rights  claimed  is,  to  allow  such  subject  to  be  remov¬ 
ed,  and  it  is  not  at  all  necessary  to  give  effect  to  any 
rights  or  relations,  other  than  the  right  of  removal, 
nor  even  to  consider  or  take  notice  of  any  other  rights 
or  relations,  except  so  far  as  they  constitute  or  destroy 
a  claim  on  the  comity  of  the  nation,  to  permit  the  re¬ 
moval.  I  submit  to  your  Honors  also,  that  there  is  no 
difficulty  in  holding  that  a  judicial  tribunal  may  al¬ 
low  a  qualified  effect  to  a  foreign  law.  If  there  are 
considerations  which  forbid  (he  court  from  allowing  a 
foreign  law  to  produce  all  its  usual  and  natural  effects 
on  the  relations  of  foreigners  who  come  within  our 
territory,  but,  at  the  same  time,  it  will  work  no  inju¬ 
ry  to  the  Commonwealth  or  its  citizens,  and  will  ex¬ 
hibit  no  bad  example,  to  allow  some  of  those  effects  j 
it  the  doing  so  will,  at  the  same  time,  promote  har¬ 
mony  and  good  feeling,  where  it  is  extremely  desir¬ 
able  to  promote  it,  encourage  frequent  intercourse, 
and  soften  prejudices  by  increasing  acquaintance,  and 
tend  to  peace  and  union  and  good  will,  why  should 
not  the  foreign  law  be  allowed  to  have  this  useful  and 
just  operation  within  our  territory  ?  Useful,  because 
it  produces  only  good  effects, — just,  because  it  pre¬ 
serves  relations  acquired  at  home  and  brought  here 
with  the  expectation  of  preserving  them,  and  which 
are  in  no  way  injurious  to  ourselves.  Such  I  under¬ 
stand  to  be  the  opinion  of  Mr.  Justice  Story.  (5)  «  A 
State  may  recognise,  and  modify  and  qualify  some 
foreign  laws  ;  it  may  enlarge  or  give  universal  effect 
to  others.’  I  have  already  shown,  by  citations  from 
this  book,  that  it  is  the  province  of  the  judicial  pow¬ 
er,  to  declare  what  effect  a  foreign  law  shall  have, 
and  of  course  it  follows  that,  when  the  learned  au¬ 
thor  says  a  state  may  modify  and  qualify  some  foreign 
laws,  he  means  that  the  judicial  power  of  the  state 
may  do  this. 

I  have  endeavored  to  prove,  that  the  qualified  and 
limited  right  w  hich  we  have  claimed  in  this  case, 
may  be  properly  claimed  and  allowed,  without  giving 
full  effect  to  the  foreign  law  concerning  master  and 
slave  ;  and  I  will  now  attempt  to  show,  that  to  per¬ 
mit  such  an  exercise  of  the  right  of  the  master  will 
work  no  injury  to  the  state  or  its  citizens. 

I.  It  will  work  no  injury  to  the  state,  by  violating- 


(o)  Confl.  of  Laws,  24. 


9 


Benjamin  R.  Curtis ,  Esq.,  for  the  Respondent. 


any  public  law  of  the  9tate.  The  only  law  in  our 
Statute  Book,  applicable  to  the  subject  of  slavery,  is 
the  law  against  kidnapping.  (1)  It  provides  that  no 
person  shall  ‘  without  lawful  authority,  forcibly  or 
secretly  coniine  or  imprison  any  other  person  within 
this  state,  or  forcibly  carry  or  send  any  such  person 
out  of  this  state,’  &c.  It  does  not  define  the  ‘  lawful 
authority  ;  ’  it  leaves  that  as  it  found  it.  In  short,  it 
provides  a  penalty  for  an  offence,  the  gist  of  which, 
depends  on  the  Common  Law  ;  and  to  say  that  the 
Statute  applies  to  this  case,  is  the  same  thing  as  to 
say,  that  the  master  has  no  ‘  lawful  authority  ’  to  con¬ 
fine  this  slave  ;  which  is  the  very  question  to  be  de¬ 
cided. 

II.  It  will  work  no  direct  injury  to  the  citizens  of 
this  state,  for  it  has  no  direct  effect  on  its  citizens.  It 
respects  only  strangers. 

III.  I  am  aware  that  these  two  divisions  by  no 
means  dispose  of  all,  or  even  of  the  principal  difficul¬ 
ties.  A  state  may  be  injured  as  vitally  by  infringe¬ 
ments  upon  its  public  policy,  as  by  breaches  of  its 
laws,  and  I  shall  endeavor  to  show  that  it  is  consist¬ 
ent  with  the  public  policy  of  Massachusetts,  to  per¬ 
mit  this  qualified  and  limited  exercise  of  the  right  of 
the  master.  I  know  that  this  is  a  wide  field;  that  it 
involves  considerations  so  broad  and  deep,  that  I  can¬ 
not  hope  to  reach  or  grasp  them  ;  but  while  I  feel 
confident  that  the  court  will  perceive  and  give  due 
weight  to  all  these  considerations,  I  also  feel  it  to  be 
my  duty  to  suggest  to  your  Honors  such  as  have  oc¬ 
curred  to  my  own  mind.  And  first,  1  beg  your  Hon¬ 
ors  to  bear  in  mind,  that  we  are  considering  the  poli¬ 
cy  of  Massachusetts  towards  citizens  of  other  states, 
.and  not  towards  her  own  citizens.  Laws  and  institu¬ 
tions  may  exist  in  other  states,  which  are  inconsist¬ 
ent  with  our  own  policy  ;  we  cannot  therefore  allow 
our  own  citizens  to  create  such  institutions  in  our  ter¬ 
ritory;  we  cannot  permit  foreigners  to  import  them 
here;  but,  at  the  same  time,  it  may  be  perfectly  con¬ 
sistent  with  our  policy  not  only  to  recognise  the  va¬ 
lidity  and  propriety  of  those  institutions,  in  the  states 
where  they  exist,  but  even  to  interfere  actively,  to 
enable  the  citizens  of  those  states  to  enjoy  those  in¬ 
stitutions  at  home.  To  illustrate  my  meaning,  sup¬ 
pose  the  province  of  Canada  should  abolish  capital 
punishment,  upon  the  ground  that  it  was  immoral,  in¬ 
expedient,  and  contrary  to  their  public  policy,  and  a 
murderer  should  escape  from  Vermont  into  that  prov¬ 
ince.  The  public  policy  of  Canada  in  respect  to  cap¬ 
ital  punishment,  within  its  own  territory,  would 
hardly  furnish  a  sufficient  reason  for  refusing  to  de¬ 
liver  up  the  murderer  to  the  authorities  of  Vermont. 

There  is  another  principle,  which  seems  to  me  im- 


(1)  Rev.  Stats.  Ch.  125,  Sec.  20. 


portant  to  be  kept  in  view.  In  considering  whether 
a  stranger  should  be  allowed  to  exercise  this  right, 
it  is  of  the  utmost  importance  to  keep  in  view  the 
relations  between  the  {Stale  of  which  such  stranger 
is  a  citizen,  and  our  own  State.  A  very  little  reflec¬ 
tion  will  convince  the  courtof  the  truth  of  this.  We 
close  our  courts  of  justice  to  an  alien  enemy.  We 
open  them  to  an  alien  friend,  for  personal  actions. 
We  open  them  to  the  citizens  of  our  sister  States,  in 
all  actions.  The  very  phrase  which  is  made  use  of 
to  express  the  foundation  on  which  the  admission  of 
all  foreign  laws  rests,  illustrates  this  truth.  Nation¬ 
al  comity  is  that  foundation.  Now  what  may  be  a 
proper  comity  in  one  case,  may  by  virtue  of  a  trea¬ 
ty  be  turned  into  a  right  in  another,  and  may  be 
wholly  done  away  in  a  third,  either  by  a  want  of  due 
comity  on  the  other  side,  or  in  some  other  way.  In 
short,  it  is  perfectly  clear,  that  there  can  be  no  gen¬ 
eral  rule,  binding  in  all  cases,  and  in  regard  to  the 
citizens  or  subjects  of  all  foreign  States,  even  in  re¬ 
spect  to  the  exercise  of  the  same  light,  or  the  exist¬ 
ence  of  the  same  relation.  Our  relations  to  one  for¬ 
eign  State  may  render  it  perfectly  consistent  with 
our  public  policy,  to  permit  a  eitizen  of  that  partic¬ 
ular  State  to  do  an  act  within  our  territory,  which 
our  public  policy  towards  another  foreign  State  would 
require  us  to  forbid  its  citizens  from  doing.  What 
then  are  the  relations  which  we  sustain  to  the  State 
of  Louisiana,  which  ought  to  affect  our  public  poli¬ 
cy  towards  her  citizens  ?  She  is  not  a  foreign  State. 
We  are  bound  up  with  her,  by  the  constitution,  into 
a  Union,  upon  the  preservation  of  which  no  man 
doubts  that  our  own  peace  and  welfare  depend. — 
Other  nations  may  cherish  friendly  relations,  and 
endeavor  to  promote  frequent  intercourse,  from  a 
fear  of  foreign  war,  or  a  desire  of  commercial  pros¬ 
perity.  But  to  us  these  relalims  and  this  inter¬ 
course  have  a  value  and  importance,  which  are  in¬ 
estimable.  They  are  the  grounds  of  safety  for  our 
domestic  peace,  and  the  happy  institutions  under 
which  we  live.  Thirteen  States  of  this  Union  are 
slaveholding  States.  Negro  slavery  has  become  in¬ 
corporated  into  all  their  institutions.  It  is  infused 
into  their  agriculture,  their  commerce,  their  me¬ 
chanical  arts,  their  domestic  relations.  Their  laws 
and  policy  bear  marks  of  it,  in  every  line.  To 
secure  its  advantages,  to  lessen  the  evils  which  are 
inseparable  from  it,  and  to  avert  the  overwhelming 
destruction  which  it  threatens,  occupies  the  thoughts 
and  engages  the  anxious  solicitude  of  almost  every 
man  in  those  States.  And  great  as  is  the  import¬ 
ance  of  this  institution  to  them,  in  every  point  of 
view,  there  can  be  no  doubt  that  it  occupies  in  their 
minds  quite  as  prominent  a  place  as  it  deserves. 

Your  Honors  will  not  forget  that  we  are  dealing 


2 


10 


Benjamin  R.  Curtis,  Esq.,  for  the  Respondent. 


with  this  institution  thus  existingin  oursister  States, 
anil  thus  deemed  to  be  all  important,  and  being  in 
fact  of  vast  importance  to  those  States; — that  we 
are  considering,  whether  a  citizen  of  one  of  those 
States,  whom  our  interest  as  well  as  our  inclination 
should  lead  us  to  welcome  here,  can  be  allowed,  con¬ 
sistently  with  our  public  policy,  to  exercise  a  right 
growing  out  of  this  important  institution,  when  the 
exercise  of  that  right  violates  no  public  law  of  the 
Stale,  and  has  no  direct  effect  upon  any  ci'.izen  of 
the  commonwealth. 

I  cannot  but  think,  that  the  constitution  itself 
furnishes  a  guide,  and  a  safe  guide,  in  the  question. 
I  say  a  guide,  and  not  a  controlling  authority,  for  I 
take  it  to  be  clearly  settled,  that  the  constitution  ap¬ 
plies  only  to  the  case  of  fugitive  slaves.  But  when 
we  find  that  the  States,  in  the  solemn  compact  which 
they  made  with  each  other,  provided  for  the  exercise 
of  this  right  in  certain  cases,  it  gives  us  some  rea¬ 
son  to  believe  that  it  is  consistent  with  the  public 
policy  of  Massachusetts,  to  protect  the  right  of  the 
master  to  that  extent,  at  least.  I  know  it  will  be  urir- 
ed,  that  the  nou-slaveholding  States  came  into  this 
measure  unwillingly,  and  this  for  the  very  reason 
that  it  was  contrary  to  their  policy ;  but  unless  it  was 
on  the  whole  consistent  with  their  policy,  it  is  clear 
they  would  never  have  come  into  it  at  all.  Massa¬ 
chusetts  undoubtedly  assented  to  this  article  in  the 
constitution,  for  different  reasons  from  those  which 
operated  on  South  Carolina,  but  her  reasons  were 
sufficient;  she  assented  to  it  of  her  own  free  will, 
and  it  was  as  much  her  free  act,  as  it  was  the  liee 
act  of  any  State,  which  came  into  the  Union.  It 
will  be  urged  also,  by  the  learned  counsel  for  the 
petitioner,  that  although  we  have  assented  to  the 
exercise  of  this  right  in  one  class  of  cases,  yet  the 
fact,  that  this  limitation  exists,  is  an  argument  to 
prove  that  the  exercise  of  the  right,  in  “any  other 
case,  would  be  contrary  to  our  policy.  That  if  it 
was  not  contrary  to  the  policy  of  the  non-slavehold¬ 
ing  States,  to  permit  the  master  to  exercise  the 
right  which  we  claim  in  this  case,  within  their  ter¬ 
ritory,  we  should  find  a  provision  adapted  to  this 
case  in  the  constitution.  To  this  argument  there 
are  several  answers.  In  the  first  place,  the  cons'i- 
tution  provides  for  that  class  of  cases  which  was 
most  important.  It  furnishes  a  remedy  for  an  evil 
which  had  been  deeply  felt  by  the  southern  Slates 
during  the  existence  of  the  confederation.  It  is  a’ 
class  of  cases,  too,  which  requires  the  active  inter - 
position  of  the  laic,  and  the  application  of  the  civil 
power  in  aid  of  the  master’s  right.  It  is  by  no  means 
a  necessary  inference,  that  all  other  cases  whatso¬ 
ever  were  disregarded,  or  deemed  to  be  without  rem¬ 
edy.  The  slave  States  having  procured  the  inser¬ 


tion  of  this  provision,  might  be  willing  to  leave  oth¬ 
er  cases  to  the  voluntary  comity  of  the  non-slave¬ 
holding  States.  On  the  other  hand,  the  non-slave- 
holding  States,  though  they  might  be  unwilling  to 
be  bound  through  all  time,  and  amidst  all  changes, 
to  afford  the  aid  of  their  civil  power  to  enforce  any 
right  of  the  master  in  their  territories,  might  be  quite 
willing  to  accord  as  a  favor  and  as  a  matter  of  com¬ 
ity,  even  more  than  they  were  willing  to  surrender 
as  a  matter  of  right.  Does  not  the  course  of  legis¬ 
lation  in  some  of  the  States  prove  this  ?  Very  soon 
after  the  adoption  of  the  constitution,  four  non-slave¬ 
holding  States  passed  laws,  securing  to  citizens  of 
slave  Stales,  who  came  within  their  territories  as 
travellers,  and  brought  their  slaves  with  them,  a 
right  to  remove  those  slaves  from  the  State,  and  re¬ 
turn  them  to  their  domicile. (1 )  In  other  words,  the 
legislatures  of  those  States  secured  to  the  master 
the  very  right  which  we  claim  in  this  case.  It  may 
be  argued,  perhaps,  that  the  very  existence  of  these 
statutes  proves  that  some  action  of  the  legislature  is 
necessary,  and  that  this  court  is  not  competent  to  do 
what  those  legislatures  have  done;  but  if  the  court 
will  examine  those  statutes,  they  will  perceive  why 
some  action  of  the  legislature  was  necessary  there, 
and  that  the  same  reason  does  not  exist  in  this  com¬ 
monwealth.  In  those  law's,  the  legislatures  forbid, 
under  a  penalty,  the  introduction  of  slaves  into  their 
several  States.  Feeling  the  force  of  the  objection, 
that  they  bad  thus  cut  off  almost  entirely  the  access 
ot  citizens  from  the  southern  Stales,  and  that  so  to 
shut  out  those  persons  would  be  impolitic  and  un¬ 
just,  they  go  on  to  make  an  exception,  in  favor  of 
travellers  who  come  into  their  respective  States,  for 
temporary  purposes.  But  in  Massachusetts,  there 
is  no  law  forbidding  the  master  to  bring  his  slave 
here,  the  legislature  has  never  acted  at  all  on  the 
subject,  and  of  course  it  has  never  become  necessa¬ 
ry  to  introduce  any  such  exception. 

I  cannot  but  believe  that  these  laws  of  Pennsyl¬ 
vania,  New  York,  New  Jersey,  and  Rhode  Island, 
have  an  important  bearing  on  this  question.  The 
legislatures  of  those  States  are  the  legitimate  and 
highest  authority,  in  regard  to  their  public  policy. 

"  hat  they  have  declared  on  this  subject,  must  be 
deemed  to  be  true;  and  where  they  have  passed  a 
law  securing  to  the  master  the  right  which  we  claim 
in  this  case,  and  have  continued  the  law  to  the  pre¬ 
sent  hour,  we  are  not  at  liberty  to  suppose  that  it 
is  contrary  to  their  public  policy,  that  the  master 
should  exercise  this  right  within  their  territory.  I 


J,  f1-  N  Y.  G-->7.  Laws  of  It.  Island 
,  1  «>'don  s  Dig.  of  Penn.  Laws  (1.  Laws  of  N. 

J  .  (.  »  /  J. 


11 


Benjamin  R.  Curtis,  Esq.,  for  the  Respondent. 


respectfully  ask  the  court  to  consider  what  differ¬ 
ence  there  is  between  the  policy  of  Pennsylvania, 
New  York,  Rhode  Island,  and  New  Jersey,  and  the 
poliey  of  Massachusetts,  on  the  subject  of  slavery. 

I  have  gone  through  with  such  suggestions,  in 
respect  to  this  question  of  public  policy,  as  have  oc¬ 
curred  to  me,  and  I  leave  it  in  the  hands  of  the 
court. 

I  shall  now  attempt  to  prove  that  slavery  is  not 
immoral,  and  that  to  allow  the  master  to  exercise 
this  right  will  not  exhibit  to  our  citizens  an  exam¬ 
ple  pernicious  and  detestable.  1  wish  not  to  be  un¬ 
derstood  to  advocate  slavery,  as  consistent  with  nat¬ 
ural  right.  I  do  not  believe  it  to  be  consistent  with 
natural  right.  If  this  cause,  or  any  cause  required 
me  to  maintain  that  slavery  was  not  a  violation  of 
the  law  of  nature,  I  would  abandon  it.  But  this 
cause  does  not  require  its  advocates  to  do  this.  The 
terms  '  moral  ’  and  1 2 3  immoral  ’  have  very  wide  and 
various  meanings,  and  of  course  it  is  necessary  to 
settle  the  meaning  of  this  word,  before  we  look  fur¬ 
ther.  I  take  it  to  be  perfectly  clear,  that  the  stand¬ 
ard  of  morality  by  which  courts  of  justice  are  to  be 
guided,  is  that  which  the  law  prescribes.  Your 
Honors’  opinion  as  men,  or  as  moralists,  have  no 
bearing  on  the  question.  Your  Honors  are  to  de¬ 
clare  what  the  law  deems  moral  or  immoral.  Such 
was  the  opinion  of  Sir  William  Scott. (1 )  Such  also 
was  the  opinion  of  Ch.  Jus.  Marshall : 

‘  Whatsoever  might  be  the  answer  of  a  moralist  to 
the  question,  a  jurist  must  search  for  its  solution  in 
■those  principles  of  action  which  are  sanctioned  by 
the  usages,  the  national  acts,  and  the  general  assent 
of  that  portion  of  the  world,  of  which  he  considers 
himself  as  a  part,  and  to  whose  law  the  appeal  is 
made.’  (2) 

The  question  therefore  is,  whether,  when  measur¬ 
ed  by  the  standard  of  our  law,  slavery  is  immoral  ? 
Upon  this  question,  I  again  refer  the  court  to  the 
case  in  3.  B.  &  Aid  353,  where  the  court  of  King’s 
Bench  allowed  the  owner  of  slaves  to  recover  30,Q00Z. 
damages,  for  the  conversion  of  his  property  ;  and 
bearing  in  mind  the  well-settled  principle,  that  the 
common  law  requires  its  suitors  to  come  into  court 
with  clean  hands,  and  that  no  man  can  there  obtain 
damages,  who  makes  title  through  an  immoral  act, 

I  ask  your  Honors  to  consider,  whether  this  decis¬ 
ion  does  not  prove  that  slavery,  by  the  law  of  Eng¬ 
land,  is  notan  immoral  institution?  The  case  of 
Emerson  v.  Howland(3)  is  to  the  same  point.  That 
was  an  action  on  a  contract  based  on  the  right  of 


(1)  2  Dodson’s  R.  249. 

(2)  Whea.  R.  121. 

(3)  1  Mason  R.  45. 


property  in  a  slave.  If  the  eminent  Judge  who  de¬ 
cided  that  case  had  deemed  slavery  an  immoral  basis, 
on  which  to  rest  a  contract,  he  would  never  have 
allowed  it  to  be  maintained.  But,  whatsoever  may 
be  the  law  of  England  on  this  subject,  by  the  law  of 
this  commonwealth,  slavery  is  not  immoral.  By  the 
supreme  law  of  this  commonwealth,  slavery  is  not 
only  recognized  as  a  valid  institution,  but  to  a  certain 
extent  is  incorporated  into  our  own  law.  Ch.  Jus. 
Parker  (4)  says,  ‘  The  words  of  the  constitution  were 
used  out  of  delicacy,  so  as  not  to  offend  some  in  the 
convention,  whose  feelings  were  abhorrent  to  slavery  ; 
but  we  there  entered  into  an  agreement  that  slaves 
should  be  considered  as  property .’  This  court  will 
hardly  declare  in  this  case,  that  slavery  is  immoral, 
and  that  to  allow  the  master  to  exercise  the  right 
claimed  would  exhibit  to  our  citizens  an  example  per¬ 
nicious  and  detestable,  when,  before  you  rise  from 
your  seats,  you  may  be  called  upon,  by  the  master  of 
a  fugitive  slave,  to  grant  a  certificate,  under  the  con¬ 
stitution,  which  will  put  the  whole  force  of  the  com¬ 
monwealth  at  his  disposal,  to  remove  his  slave  from 
our  territory. 

If  I  have  succeeded  in  convincing  the  court  of  the 
truth  of  the  points  which  I  have  made,  I  have  shown 
that  this  case  is  within  the  general  principles  of  the 
law  of  nations;  and  that  it  does  not  come  within  any 
exception  to  those  principles,  and  of  course  is  to  be 
governed  by  them.  I  now  ask  the  attention  of  the 
court  to  some  authorities,  which  bear  more  directly  on 
the  question  before  you. 

The  leading  case  on  this  subject  is  the  case  of  the 
negro  Sommersett.(5)  In  many  of  its  leading  features, 
it  resembles  the  case  at  bar.  I  shall  not  deny  that 
Sommersett’s  case  settled  the  law  of  England.  How¬ 
ever  contrary  it  may  have  been  to  the  opinions  of  em¬ 
inent  common  lawyers  of  preceding  times,  and  to  the 
general  current  of  opinion  and  practice  at  that  day,  it 
has  been  acquiesced  in,  applauded,  confirmed,  till  it 
would  be  folly  to  deny  that  the  present  common  law 
of  England,  in  regard  to  slavery,  is  there  to  be  found. 
But  I  think,  nevertheless,  that  much  instruction  con¬ 
cerning  this  great  case,  and  much  valuable  reasoning 
upon  the  subject  of  it,  may  be  found  in  the  elaborate 
opinion  of  Lord  Stowell,  in  the  matter  of  the  slave 
Grace,  to  which  I  have  already  referred.  And,  though 
it  may  not  convince  us  that  Sommersett’s  case  was 
decided  erroneously,  it  will  probably  prevent  us  from 
being  misled,  by  the  highly  figurative  and  declama¬ 
tory  language,  which  was  indulged  in  by  some  of  the 
eminent  men  concerned  in  that  cause.  If  the  reports 
of  the  judgment  of  Lord  Mansfield  are  even  tolerably 

(4)  2  Pick.  R.  19.  Ct-t-%-^  f  ’ 

(5)  20  Howell’s  State  Trials,  20. 


12 


Benjamin  R.  Curtis,  Esq.,  for  the  Respondent. 


lull  and  correct,  it  is  much  to  he  regretted  that  we 
we  are  not  permitted  to  see  a  little  more  fully,  the 
grounds  on  which  the  court  proceeded,  and  the  train 
ol  reasoning  by  which  they  were  brought  to  the  de¬ 
cision  which  they  made.  The  judgment,  as  report¬ 
ed,  is  singularly  deficient  in  this  respect ;  and  feeling 
as  we  do,  that  it  is  necessary  for  us  to  distinguish  the 
case  at  bar  from  Sommersett’s  case,  we  are  not  a  lit¬ 
tle  embarrassed,  by  our  ignorance  of  these  grounds 
and  reasons.  I  have  already  had  occasion  to  notice 
one  expression  made  use  ol  by  his  Lordship,  in  that 
case,  and  1  have  attempted  to  show,  that  it  need  not 
he  an  insurmountable  obstacle  here.  I  will  now  call 
the  attention  of  the  court  to  two  other  principles,  being 
the  only  principles  which  I  have  been  able  to  discov¬ 
er  in  the  opinion. 

<  Contract  for  sale  of  a  slave  is  good  here  ;  the  sale 
of  a  slave  is  a  matter  to  which  the  law  properly  and 
readily  attaches,  and  will  maintain  the  price  accord¬ 
ing  to  the  agreement.  But  here,  the  person  ol  the 
slave  himself  is  immediately  the  object  of  the  enqui¬ 
ry,  which  makes  a  very  material  difference.’  With 
all  submission,  I  must  confess,  that  I  am  unable  to 
perceive  the  distinction.  What  is  the  subject  of  a 
contract  for  the  sale  of  a  slave  ?  Is  it  not  the  person 
ol  the  slave  ?  And  what  is  the  subject  of  enquiry,  in 
an  action  on  such  contract  ?  Is  it  not  whether  the 
vendor  sold  to  the  purchaser  the  person  of  the  slave  ? 
What  was  the  subject  of  enquiry,  in  the  action  brought 
by  the  owner  of  slaves  against  the  captain  of  the  Brit- 


this  is  undoubtedly  true.  We  must  find  in  this  case 
some  law,  which  will  permit  this  master  to  remove 
the  slave,  and  it  must  be  Massachusetts  law  too ;  but 
the  law  of  Massachusetts,  which  we  expect  to  find,  is 
that  principle  which  declares  that  the  law  of  the  dom¬ 
icil  shall  govern,  as  to  the  relations  between  foreign¬ 
ers,  except  in  so  far  as  it  contradicts  our  own  policy 
and  laws. 

If  by  positive  law  is  meant  a  law  of  the  State  where 
the  question  arises,  without  relerence  to  the  law  ol 
the  domicil,  and  that  the  law  of  the  domicil  cannot  be, 
in  any  degree,  regarded,  even  where  the  question 
arises  between  strangers,  then  we  deny  the  position. 
We  say  it  is  not  true  even  in  England,  and  that  the 
cases  in  which  the  English  courts  have  recognized  the 
foreigner’s  right  of  property  in  slaves,  and  given  him 
damages  for  a  violation  of  that  right  of  property,  prove 
that  it  is  not  the  law  there. 

But  the  grounds,  on  which  we  expect  to  distinguish 
this  case  from  Sommersett’s  case  are,  that  the  owner 
of  Sommersett  was  a  British  subject,  resident  in  Vir¬ 
ginia,  then  a  British  colony.  That  the  question  of 
national  comity  did  not  arise  in  that  case.  That  none 
of  the  considerations,  which  grow  out  of  our  close  and 
peculiar  relations  with  the  State  of  Louisiana,  there 
existed.  That  the  public  policy  of  England,  in  re¬ 
spect  to  her  dependent  colonies,  was  a  very  different 
thing  from  the  public  policy  of  Massachusetts,  in  re¬ 
spect  to  her  sister  States.  That  a  citizen  of  the  State 
ofLouisiana  has  a  different  standing  in  our  courts,  at 


ish  cruiser,  and  reported  in  3  B.  &  Aid.?  Was  it  this  day,  from  the  standing  of  a  1  irginian  in  the  King’s 
not  whether  the  plaintiff  owned  the  persons  of  the  Bench  in  1772,  just  before  the  breaking  out  of  the 
slaves,  and  the  defendant  destroyed  his  property  ?—  »  revolutionary  war.  In  short,  that  Sommersett’s  case 


How  then  can  it  be  said,  that  the  person  of  the  slave 
comes  in  question,  in  the  one  case,  more  than  in  the 
other  ? 

*  The  state  of  slavery  is  of  such  a  nature,  that  it  is 
incapable  of  being  introduced  on  any  reasons  moral  or 
political,  but  only  by  positive  law.’  And  again,  ‘  Sla¬ 
very  is  so  odious,  that  nothing  can  be  suffered  to  sup¬ 
port  it  but  positive  law.’  Now  if  by  positive  law  is 
meant  a  law  enacted  by  the  legislative  power  of  the 
country,  this  assertion  is  not  true  in  point  of  fact ;  for 
in  all  modern  States,  I  believe,  with  the  exception  of 
some  of  the  colonies  of  Spain,  slavery  has  been  intro¬ 
duced  by  custom,  and  without  any  action  of  the  legis¬ 
lative  power.  Negro  slaves  were  introduced  and 
held,  like  merchandize,  or  any  species  of  property, 
because  slavery  was  not  forbidden  by  law,  and  not 
because  it  was  required  or  sanctioned  by  law. 

If  by  positive  law,  it  is  meant  that  there  must  be 
some  law  of  the  State,  which  at  least  permits  the 
master  to  exercise  acts  of  ownership  over  the  slave. 


was  decided  by  an  English  court,  on  considerations 
prbper  to  that  country  ; — that  this  case  is  to  be  decid¬ 
ed  by  a  Massachusetts  court,  upon  reasons  proper  to 
ourse  1  vc*.  ^And  ^^J^eve  succeeded  in  convincing 
the  court,  th«  it  J^^Mfistent  with  the  public  policy 
of  Massachusetts,  tff" permit  the  master  to  exercise  the 
right  claimed  in  this  case,  I  think  the  court  can  feel 
no  difficulty  in  distinguishing  this  case  from  Sommer¬ 
sett’s  case.  I  know  not  how  I  can  better  illustrate 
my  meaning,  than  by  supposing  a  case.  Suppose  that 
slavery  had  existed  in  Scotland,  before  the  union  ;  that 
it  had  become  incorporated  into  all  her  institutions, 
civil,  political  and  domestic;  that  it  was  not  only  of 
great  importance  to  the  Scottish  nation,  but  one  in 
which  they  felt  an  intense  interest,  which  transcend¬ 
ed  even  its  real  importance  ; — that  the  existence  of 
this  institution  was  one  of  the  chief  obstacles  to  a 
union  of  the  two  kingdoms  ;  that  its  protection  was 
provided  for  and  guaranteed,  and  the  faith  of  the  Eng¬ 
lish  nation  pledged  thereto,  by  the  act  of  union  ;  that 
it  was  made  the  basis  of  taxation  and  representation. 


13 


Benjamin  R.  Curtis,  Esq.,  for  the  Respondent. 


in  the  imperial  parliament.  And  then  suppose  that  a 
Scottish  gentleman,  travelling  into  England  with  his 
slave,  and  restraining  him  for  the  purpose  of  carrying 
him  back  to  Scotland,  that  slave  had  been  brought  be¬ 
fore  Lord  Mansfield,  on  a  writ  of  habeas  corpus.  Do 
your  Honors  believe  that  he  would  have  been  dis¬ 
missed  from  the  custody  of  his  master,  on  the  ground 
that  slavery  was  so  odious,  that  the  master  should  not 
be  permitted  to  carry  his  slave  home,  because  there 
was  no  positive  law  of  parliament  providing  for  the 
case  ?  Should  we  not  have  heard  something  of  the 
act  of  union,  of  the  ultimate  relations  between  the  two 
kingdoms  ;  of  the  great  importance  of  the  institution 
to  the  sister  kingdom  ;  of  the  state  of  feeling  there  on 
the  subject ;  of  the  necessity  to  preserve  amicable 
feelings,  and  encourage  intercourse  between  the  peo¬ 
ple  of  the  different  sides  of  the  border  ?  I  submit  to 
your  Honors,  that  we  should,  and  that  the  result 
would  have  been  different  from  the  result  of  Sommer- 
sett’s  case. 

I  now  ask  your  Honors’  attention  to  some  authori¬ 
ties,  in  support  of  our  view  of  this  case. 

The  case  of  the  Aurora,  in  10  Wheaton,  has  alrea¬ 
dy  been- referred  to.  In  that  case,  a  Spanish  slave 
ship  was  captured  on  the  coast  of  Africa,  by  a  pirati¬ 
cal  vessel.  The  slaves  were  brought  by  the  pirates 
near  the  coast  of  the  United  States,  probably  with  the 
intention  of  smuggling  them  into  some  part  of  our 
country.  The  vessel  having  them  on  board,  was  seiz¬ 
ed  by  a  public  armed  vessel  of  the  U.  S.,  and  brought 
in  for  adjudication.  The  Spanish  owner  claimed  the 
slaves,  and  they  were  restored  to  him  by  the  court. 
Now  here  was  a  case  in  which  the  slaves  came  law¬ 
fully  into  the  custody  of  the  United  States,  and  with¬ 
out  any  improper  intervention  on  the  part  of  the  pub¬ 
lic  armed  vessel.  The  case  seems  to  have  been  ex¬ 
actly  parallel  with  the  case  of  a  cargo  of  slaves,  cast 
upon  our  coast  by  a  storm  ;  and  yet  the  court  inter¬ 
fered  actively,  to  restore  them  to  their  foreign  owner. 

A  case  was  brought  before  Judge  Morris,  of  Indi¬ 
ana,  in  1829,  in  regard  to  the  slaves  of  one  Sewall,  by 
habeas  corpus ,  the  return  to  which  stated  that  Sew¬ 
all  was  emigrating  from  Virginia  to  Missouri,  with 
his  family  and  slaves,  and  that  his  route  led  him 
through  Indiana.  But  the  evidence  showed,  that  he 
was  going  to  settle  in  Illinois,  and  intended  to  run 
his  negroes  into  Missouri,  for  the  purpose  of  selling 
them.  The  decision  turned,  therefore,  on  the  fact, 


that  the  party  had'abandoned  his  domicil,  in  a  State 
where  he  could  hold  slaves,  and  had  not  shown  even 
an  intention  of  acquiring  a  new  domicil,  in  another 
such  State  ;  but  on  the  contrary,  so  far  as  his  inten¬ 
tion  did  appear,  it  was  to  settle  in  a  non-slaveholding 
State.  The  slaves  were  accordingly  declared  free ; 
but  the  Judge  expressly  intimates  that  his  decision 
would  have  been  otherwise,  if  the  domicil  of  the  own¬ 
er  had  continued  to  be  in  a  slaveholding  state.  ‘By 
the  law  of  nature  and  of  nations, '(see  Vattel  160)  and 
the  necessary  and  legal  consequences  resulting  from 
the  civil  and  political  relations  subsisting  between  the 
citizens,  as  well  as  the  States  of  this  federative  re¬ 
public,  I  have  no  doubt  but  the  citizen  of  a  slave 
State  has  a  right  to  pass,  upon  business  or  pleasure, 
through  any  of  the  States,  attended  by  his  slaves,  or 
servants  ;  and  while  he  retains  the  character  and 
rights  of  a  citizen  of  a  slave  State,  his  right  to  reclaim 
his  slave  would  be  unquestioned.  An  escape  from 
the  attendance  upon  the  person  of  his  master,  while 
on  a  journey  through  a  free  State,  should  be  consid¬ 
ered  as  an  escape  from  the  State  where  the  master 
had  a  right  of  citizenship,  and  by  the  laws  of  which 
the  service  of  the  slave  was  due.  It  is  not  necessary 
forme  to  decide,  whether  an  emigrant  from  one  slave 
State  to  another  would  have  the  right  of  reclaiming 
his  slaves,  if  they  should  escape  from  him  while  pass¬ 
ing  through  our  State,  because  that  is  not  the  case 
now  before  me.  *  *  *  The  emigrant  from  one 

State  to  another,  might  be  considered  prospectively 
as  the  citizen  or  resident  of  the  State  to  which  he  was 
removing ;  and  should  be  protected  in  the  enjoyment 
of  those  rights  he  acquired  in  the  State  from  which 
he  emigrated,  and  which  are  recognised  and  protect¬ 
ed  by  the  laws  of  the  State  to  which  he  is  going.  But 
this  right,  I  conceive,  cannot  be  derived  from  any  pro¬ 
vision  of  positive  law.(l) 

The  case  in  2  Marshall’s  Ken.  Rep.,  which  has  al¬ 
ready  been  referred  to,  has  an  important  bearing  on 
this  case.  I  have  not  the  book  at  hand,  but  your  Hon¬ 
ors  will  find,  on  referring  to  it,  that  it  contains  a  strong 
and  distinct  declaration  of  the  opinion  of  the  court,  in 
favor  of  the  right  claimed  by  the  respondent  in  this 
case. 

These  are  the  views  entertained  by  the  respond¬ 
ent’s  counsel,  concerning  this  important  and  interest¬ 
ing  question. 


(1)  3  Amer.  Jurist,  406. 


' 


I  - 


- 


■ 


ELLIS  GRAY  LORING,  ESQ.,  FOR  THE  PETITIONER. 


JiJay  it  please  the  Court: 

I  feel  bound  in  justice  to  the  petitioner,  be* 
fore  proceeding  to  the  principal  points  in  contro¬ 
versy  in  this  case,  to  reply  very  briefly  to  one  or 
two  suggestions,  which  were  thrown  out  by  the 
counsel  for  the  respondent,  at  the  former  hearing  be¬ 
fore  Judge  Wilde.  And  first,  I  would  say  that 
this  case  has  no  connexion  with  any  of  the  distracting 
questions  of  the  day.  Its  discussion  may  lead  to  re¬ 
marks  on  the  moral  character  of  the  institution  of  sla¬ 
very,  but  not  for  the  objects,  nor  in  the  spirit  of  a  par¬ 
ty.  The  promoter  of  this  suit  is  not,  to  my  knowl¬ 
edge,  a  member  of  any  society  for  the  abolition  of  sla¬ 
very. 

The  return  to  the  writ  shows  that  the  mother  of  the 
child  is  a  slave  in  New  Orleans,  and  something  has 
been  said  of  the  inhumanity  of  separating  mother  and 
child.  It  is  alleged,  too,  that  a  promise  has  been  giv¬ 
en  to  the  mother  that  her  child  should  be  returned  to 
her.  The  necessity  of  this  separation  is  undoubtedly 
a  painful  feature  of  the  present  case.  The  responsi¬ 
bility  of  it  belongs,  however,  wholly  to  that  odious 
system,  which  is  continually  breaking  up  (he  domes¬ 
tic  ties.  It  is  slavery  and  not  freedom  that  is  separ¬ 
ating  mother  and  child.  An  inveterate,  deep-rooted 
abuse  places  every  thing  within  its  sphere  in  a  false 
position.  Any  attempt  to  rectify  it,  on  either  a  gen¬ 
eral  or  partial  scale,  produces  incidental  and  tempo¬ 
rary  disorder.  But  this  is  no  reason  for  standing  still. 

But  is  there  really  any  inhumanity  in  making  this 
child  a  free  citizen  of  Massachusetts  !  Is  it  unkind¬ 
ness  to  the  child  ?  Surely  not.  If  she  were  able  to 
form  an  intelligent  wish,  we  are  bound  to  presume 
she  would  prefer  freedom  to  slavery.  Any  other 
supposition  is  a  concession  that  the  average  chance 
for  happiness  and  usefulness  here,  is  less  than  it  would 
be  in  slavery.  Is  it  unkindiiess  to  the  mother?  Not 
if  she  desires  the  true  good  ot  her  child.  No  doubt 
she  felt  anxious  that  her  daughter  should  be  returned 
to  her.  But  her  apprehension  was  of  a  very  different 
event  from  that  we  seek  to  bring  about.  The  poor 
ignorant  slave  did  not  contemplate  th«  possibility  of 
her  child’s  emancipation-  Her  dread  was  lest  it  might 
be  sUld  on  the  way.  When  Judge  Bushrod  Washing- 

3 


on,*  was  censured,  five  years  since,  in  Niles’  Regis¬ 
ter,  for  his  inhumanity  in  selling  children  belonging 
to  his  plantation  in  Virginia,  away  from  their  parents 
into  the  slavery  of  the  far  South,  the  learned  Judge 
in  his  public  reply,  addressed  to  a  Baltimore  Journal, 
admits  the  fact  charged  upon  him,  but  says,  ‘  It  is  an 
extraordinary  circumstance  that  so  much  sensibility 
should  be  (elt  when  similar  occurrences  take  place, 
in  relation  to  this  particular  class  ol  people.  I  may 
be  permitted  to  add,’  he  continues,  ‘that  I  have  nev¬ 
er  beard  a  sigh  or  a  complaint  from  the  parents  ol  the 
two  most  valuable  servants  I  ever  owned,  that  their 
sons  had  abandoned  them  and  my  service,  and  sought 
new  habitations  in  the  JV'orthern  states,  where  they 
now  arc  '  That  eminent  judge  would  have  found 
the  circumstance  less  ‘  extraordinary  ’  if  he  had  been 
placed  in  a  similar  situation,  or  had  reflected  that  to  a 
slave  parent,  her  son’s  escape  into  a  land  of  freedom 
may  seem  somewhat  smaller  occasion  for  a  ‘sigh  or 
complaint,’  than  his  sale  into  a  distant  and  still  more 
hopeless  servitude.  This  child,  if  h  eed,  will  be  edu¬ 
cated  for  usefulness  and  respectability.  She  will  nev¬ 
er  want  a  friend,  nor  the  means  of  improvement  and 
happiness.  I  am  authorized  to  go  further,  and  to  say 
that  if  the  claimant  of  this  child  will  manumit  her  ac¬ 
cording  to  the  laws  of  Louisiana,  great  as  would  be 
the  peril  to  which  she  would  be  exposed,  a  friendless 
infant  of  six  years  old,  in  the  midst  ol  a  slave  city, 
that  peril  will  be  met,  for  the  sake  of  placing  her 
again  in  her  mother’s  bosom.  She  shall  be  returned 
to  New  Orieans. 

A  preliminary  difficulty  has  been  suggested  by  the 
court.  It  is  said  to  be  doubtful  to  whom  the  custody 
of  the  child  can  be  committed,  if  she  should  be  dis¬ 
charged  from  the  present  detention.  It  might  be 
sufficient  to  reply  that  a  decision  of  the  court  favora¬ 
ble  to  the  petitioner  would  be  equivalent  to  pronounc¬ 
ing  the  detention  by  the  respondent  wrongful.  On 
the  chilli’s  being  discharged,  the  respondent  would 
have  no  better  right  to  renew  the  detention,  than  to 
continue  it.  His  attempting  to  do  so  would  be  in  con¬ 
tempt  of  the  court.  Any  other  person  whatever  would 

*  [President  of  the  American  Colonization  Society. 
— Reporter .] 


14 


Ellis  Gray  Lorirtg,  Esq.,  For  the  Petitioner. 


have  a  better  right  than  he,  or  those  for  whom  lie 
claims.  The  child  would  in  het  be  taken  at  once  in¬ 
to  the  protection  and  keeping  of  the  petitioner,  and  no 
practical  difficulty  would  ensue.  If,  however,  this 
course  should  be  supposed  open  to  objection,  two  al¬ 
ternatives  present  themselves.  The  court  can  cither 
commit  her  to  the  Overseers  of  the  Poor,  who  aie 
bound  to  ‘  relieve,  support  and  employ  all  poor  per¬ 
sons  residing  or  found  in  their  towns,  having  no  law¬ 
ful  settlement  within  this  state,’  (1)  or  the  case  may 
stand  continued,  till  letters  of  guardianship  can  issue 
from  the  Probate  Court.  ‘  The  Samaritan  Asylum,’  a 
well  administered  charity  in  this  city,  incorporated  hy 
the  State  for  the  relief  of  colored  orphans,  stands  rea¬ 
dy  on  her  liberation,  to  receive  the  child  from  the 
proper  hands,  and  to  give  her  suitable  support  and  a 
good  education. 

I  have  glanced  at  these  matters,  because  I  wished 
to  dispose  of  all  minor  points  before  coming  to  the 
main  question.  To  that  question  I  now  come. 

It  has  been  urged,  then,  by  the  counsel  who  has 
prededed  me,  that  the  citizens  ol  the  slave  states  of 
this  Union,  visiting  Massachusetts,  are  to  be  permit¬ 
ted  to  bring  their  slaves  with  them,  and  to  take  them 
away  on  their  return.  Thus  involving  the  right  of 
exercising  the  relation  of  master  and  slave  within  this 
Commonwealth.  And  this  permission  to  foreign¬ 
ers  of  a  rieht  not  conceded  to  our  own  citizens  is  said 
to  be  required  of  u?  by  the  principles  of  ‘  the  comity 
of  nations.’  My  learned  brother  has  contended 
that  this  obligation  arises  from  the  general  doctrines 
of  international  law,  and  also  from  the  peculiar  rela¬ 
tion  existing  between  the  members  of  the  Union.  Of 
these  in  their  order. 

1.  — And  first,  l  would  remark  that  comity  is  not  to 
be  exercised  in  doubtful  cases.  An  eminent  Louisi¬ 
ana  judge  has  remarked  (2)  *  That  in  the  conflict  of 
Iaws.it  must  be  olten  a  matter  of  doubt,  which  should 
prevail,  and  that  whenever  that  doubt  does  exist,  the 
court  which  decides  will  prefer  the  law  of  its  own 
country,  to  that  of  the  stranger. 

2.  — Comity  is  practically  founded  on  the  consent  of 
nations  and  the  need  that  is  felt  of  reciprocal  good  offi- 
ces.  Now  nothing  is  more  certain  than  that  no  such 
consent  of  nations  prevails  on  this  subject.  Mr.  Har¬ 
grave  asserts  in  his  celebrated  argument  in  Soinmer- 
sett  s  case  (3)  and  the  assertion  is  fully  sustain¬ 
ed  by  authorities  that  most  ot  the  European  States 
in  which  slavery  is  discountenanced  have  adopt¬ 
ed  a  like  policy  <  to  that  of  England,  in  disregard¬ 
ing  the  lex  loci  in  the  case  of  slaves,’  and  in  giving 
‘  immediate  and  entire  liberty  to  them,  when  they 

(1)  Mass.  Rev.  Slat.  371.  “ 

(2)  17  Martin  Rep.  596 — Story’s  Confl.  29  271 

(3)  20  How.  St,  Trials  61, 


are  brought  here  from  another  country.’  And  the 
learned  commentator  on  American  law  asserts(4)  that 
*  there  is  no  such  thing  as  the  admission  of  slaves,  or 
slavery,  in  the  sense  of  the  civil  law,  or  ot  the  laws 
and  usages  of  the  West  Indies,  either  in  England  or 
in  any  part  of  Europe.' 

A  recent  transaction  which  has  not  yet  found  its 
way  into  the  reports  of  decisions,  but  which  has  occa¬ 
sioned  too  much  remark  not  to  be  immediately  recall¬ 
ed,  will  illustrate  the  policy  ot  Great  Britain  on 
this  subject.  About  a  year  since,  a  vessel  belonging, 

I  believe,  to  the  regular  line  of  Franklin  &  Armfield, 
slave  traders  in  the  District  ot  Columbia,  was  on  its 
way  to  Charleston  in  South  Caroliaa,  with  its  cargo 
of  slaves.  The  vessel  was,  by  stress  of  weather, driv¬ 
en  into  the  Island  of  Bermuda.  Immediately  on  her 
arrival  the  Chief  Justice  ot  the  Island  brought  up  the 
slaves  by  habeas  corpus,  and  freed  every  one  of  them. 
The  loss  to  the  American  owner  was  of  seventy  slaves, 
probably  valued  at  fifty  thousand  dollars.  Here  is  an 
extreme  case,  and  yet  no  remonstrance  has  followed 
from  the  owners  or  from  our  government.  It  has  been 
tacitly  admitted  that  the  well-settled  policy  of  Eng¬ 
land  in  regard  to  slavery  would  make  remonstrance 
useless.  If  any  other  species  of  property  had  been  in 
question,  we  should  have  heard  not  merely  of  comity, 
but  of  justice  and  national  honor.  But  the  Bermuda 
case  is  ‘  a  delicate  subject,’  and  our  government  are 
wisely  silent  on  it. 

There  is  then  no  such  consent  ol  nations  on  the  sub¬ 
ject  of  slavery,  as  must  form  the  basis  of  comity,  if 
the  question  be  considered  as  between  foreign  states. 
In  the  next  place  there  is  no  room  here  for  reciproci¬ 
ty.  We  have  no  slaves  in  Massachusetts  in  regard  to 
whom  we  can  ask  the  exercise  of  the  same  comity 
which  is  claimed  ol  us  for  the  South.  Nay, the  comity 
which  is  due  to  freemen  is  not  extended  to  us  by  the 
slaveholding  states.  Not  only  is  it  not  extended  to  us 
in  fact,  but  it  is  not  recognized  as  due  in  their  statute 
books.  Throughout  the  slave  states  color  furnishes  a 
presumption  of  slavery,  and  a  free  colored  citizen  of 
Massachusetts,  if  found  at  the  South,  may  be  called 
on  to  prove  affirmatively  his  freedom  or  be  sold  into 
slavery.  Still  more — in  direct  violation  of  the  consti¬ 
tutional  provision  guaranteeing  to  the  citizens  of  each 
state  ‘  all  privileges  and  immunities  of  citizens  in  the 
several  states,’  colored  citizens  of  the  North,  seamen 
or  others,  are  forbidden  by  law  (5)  from  entering 
many  ol  the  Southern  ports  of  this  Union,  on  peril  of 
being  ‘  confined  in  jail,’  till  the  departure  of  the  ves¬ 
sel  in  which  they  arrived  ; — the  captain  to  pay  the  jail 
expenses,  under  the  penalty  of  one  thousand  dollars 
fine,  and  not  less  than  six  months  imprisonment. — 

(4)  2  Kent  Gora.  203,  1st  Ed. 

(3)  Laws  of  S.  C.  1S23  eh.  20 — Laws  of  Georgia 
$29.  elf.  6$ 


Ellis  Gray  Loring,  Esq. ,  fur  the  Petitioner. 


15 


Many  Southern  prisons  are,  I  doubt  not,  at  this  mo¬ 
ment,  full  of  tree  persons  of  color,  imprisoned  under 
unjust  laws  like  these  I  refer  the  court,  for  an 
exposition  of  this  practice  under  the  oppressive  law  I 
have  cited,  to  the  *  Memorial  of  forty-two  masters  of 
vessels  lying  in  the  port  of  Charleston,  S.  C.’  present¬ 
ed  to  Congress  Feb.  19,  1823.  I  have  referred  to 
these  laws  and  usages,  only  as  specimens  of  the  whole¬ 
sale  outrage  and  injustice  to  which  our  own  citizens 
are  exposed,  by  law,  in  those  parts  of  the  country, 
from  whence  the  call  for  comity  proceeds.  For  furth¬ 
er  details,  I  refer  to  the  ‘  Report  ’  made  by  the  Hon. 
Mr.  Whitmarsh  to  the  Senate  of  Massachusetts,  at  its 
last  Session,  ‘  on  the  petition  of  George  Odiorne  and 
others  relative  to  certain  laws  (1)  of  several  of 
the  Southern  States.’  1  do  not  limit  my  remarks 
on  the  want  of  reciprocity,  to  the  State  of  Lou¬ 
isiana  alone,  because  it  is  obvious  that  if  we  are  to 
permit  slavery  here,  through  comity,  that  comity 
cannot  be  limited  to  Louisiana  slave-masters  alone. 
We  must  settle  our  new  Massachusetts  Slave  Code 
for  all  slaveholders  at  once,  from  which  ever  of 
the  twelve  slave  States  they  come.  Twelve  degrees 
of  comity  would  be  intolerable.  The  whole  South 
are  identified  in  policy  on  this  subject,  and  I  feel  that 
I  do  enough,  in  showing  that  in  the  slave-portions  of 
our  country,  generally,  no  adequate  respect  is  shown 
to  the  rights  of  our  free  citizens. 

Suppose  instead  of  a  colored  child,  this  were  the 
case  of  a  white  slave,  brought  to  our  shores  by  a  Rus¬ 
sian  or  Turkish  noble.  (2)  Could  we  listen  to  the 
claim  of  either  of  those  ‘  ancient  and  faithful  al¬ 
lies  of  the  U.  S.,’  asking  to  retain  his  despot¬ 
ic  authority  over  our  fair  skinned  fellow  creature 
pleading  lor  freedom  ?  The  proposition  would  be 
thought  at  once  ludicrous  and  horrible.  It  would  not 
be  tolerated  one  moment.  But  white  or  black  skins 
are  nothing  here — this  tribunal,  like  a  greater,  is  no 
respecter  ot  persons. 

3. — I  remark  in  the  third  place,  that  there  is  no  room 
for  comity  where  the  subject  has  been  matter  of  ex¬ 
press  regulation.  The  constitution  of  the  U.  S.  un¬ 
dertakes  to  settle,  as  between  the  States,  the  ques¬ 
tions  growing  out  of  slavery.  The  right  of  the  mas- 

( 1 )  See  Prince’s  Dig.  of  Laws  of  Georgia  465,  467 
—Laws  of  N.  C.  1830  ch.  30,  ch.  981,  1826  ch  21, 
p.  684  ch.  362 — Mississippi  Rev.  Code  p.  3S7  §  80, 
377  §  34  Virg.  Laws  1830  ch.  39 — S.  C.  Laws  1820, 
p.  22,  1S23  ]>.  61 — Virg.  Rev.  Code  p.  428  §  30 — 
1.  Martin  Dig.  678 — and  see  especially  the  Act  of  the 
Legislature  of  Georgia,  approved  by  the  Governor 
Dec.  26,  1831,  and  still  in  force,  offering  a  reward  of 
five  thousand  dollars  for  the  abduction  of  the  editor  or 
publisher  ‘  of  a  certain  newspaper  called  the  Liberator, 
published  in  the  town  of  Boston  and  State  of  Massa¬ 
chusetts. 

(2)  Story  Confl.  92. 


ter  to  reclaim  his  slave  who  escapes  from  the  State, 
where  he  is  held  to  service,  is  clearly  established. 
My  learned  brother  admits  that  this  is  not  the  case  of 
an  escape,  and  that  the  express  provision  of  the  con¬ 
stitution  respecting  fugitives,  is  not  applicable  to  it. 
He  contends  that  the  class  of  cases  like  that  before 
us,  was  left  to  the  comity,  which  was  to  be  looked  for 
between  the  States.  But  had  the  Southern  States  any 
right  to  expect  the  comity  now  claimed  ?  So  far  from 
it,  that,  according  to  the  learned  commentator  on  the 
constitution,  ‘  the  want  of  such  a  provision  under  the 
confederation,  (as  that  for  the  return  of  fugitive  slaves) 
was  felt  as  a  grievous  inconvenience  by  the  slave¬ 
holding  Slates, — since  in  many  states  no  aid  whatso¬ 
ever  would  be  allowed  to  the  owners  ;  and  sometimes 
indeed  they  met  with  open  resistance.’  Now  how 
did  it  happen,  I  ask,  that  the  Southern  framers  of  the 
constitution,  after  this  experience,  left  a  doubtful  point, 
like  the  present,  to  be  settled  by  uncertain  con¬ 
siderations  of  comity,  while  they  guarded  with  such 
jealous  care  an  apparently  far  stronger  case  of  right  ? 
Why  not  leave  the  whole  to  comity  ?  Where  a  slave, 
escaping  from  bondage,  flies  to  this  State,  and  the 
master  follows  in  hot  pursuit,  his  right  to  reclaim  the 
fugitive  certainly  seems  far  clearer  than  where  he 
voluntarily  brings  his  slave  among  us.  Yet  the  latter 
case  is  left  out  of  the  constitution,  while  the  former  is 
most  carefully  guarded. (3) 

4. — If  the  doctrine  of  comity  is  not  applicable,  where 
the  matter  has  been  the  subject  of  positive  regula¬ 
tions,  still  less  is  it  admi=«ible  when  those  regulations 
are  the  result  of  mutual  concessions,  afler  long  dis¬ 
pute  and  difficulty.  But  this  is  precisely  the  history 
of  our  constitution.  It  is  called  ‘  a  compact,’  ‘  a  com¬ 
promise. ’(4) — Is  it  a  written  compact  ?  Then  we  are 
not  to  vary  or  control  it  by  parol.  No  principle  of  law- 
rests  on  a  stronger  basis  of  sound  sense  than  this.  Is 
it  a  compromise  ?  Then  you  may  be  sure  it  was  care¬ 
fully  penned.  A  compromise  imports  a  mutual  sur¬ 
render  of  rights,  interests,  or  prejudices.  Unques¬ 
tionably,  then,  the  instrument  contains  all  that  was 
surrendered.  We  are  not  to  be  told  that  some  of  our 
principles  were  yielded  up  by  compromise,  and  the 
rest  are  to  be  sacrificed  to  comity.  The  extent  of  the 
surrender  is  limited  by  the  terms  of  the  contract. — 
Each  party  said  to  the  other  ‘Thus  far  shaft  thou 
come,  and  no  further!  ’ 

(3)  It  is  no  reply  to  this  argument  to  say,  as  my 
brother  who  argued  for  the  master  has  done,  that  the 
case  of  slaves  escaping  from  other  States,  was  ex¬ 
pressly  provided  for  in  the  constitution  because  there 
the  active  interposition  of  the  State  authorities  is  re¬ 
quired.  The  case  of  a  slave  who  comes  here  by  his 
master’s  consent  and  then  refuses  to  return,  presents 
precisely  the  same  necessity  for  our  active  interposi¬ 
tion,  as  the  case  of  a  fugitive. 

(4)  2  Pick.  Rep.  19. 


16 


Ellis  Gray  Loving,  Esq.,  for  the  Petitioner. 


It  is  well  known  that  when  our  State  Convention 
was  deliberating  on  the  adoption  of  the  constitution  of 
the  U.  S.,  one  of  the  most  serious  arguments  urged 
against  it  was  that  some  of  its  provisions  recognized 
slavery.  Suppose  the  objectors  had  been  told  *  You 
not  only  concede  so  much  to  the  slaveholder  by  the 
terms  of  the  constitution,— but  there  is  something  be¬ 
yond,  left  unsettled.  So  far,  you  go  by  compact, 
— and  something  further — indeed  nobody'  knows  ex¬ 
actly  how  far — you  go  by  comity.  Certain  other  un- 
definable  rights  are  to  be  ‘  thrown  in,’  such  as  the 
right  of  the  slaveholder  to  come  into  the  free  States, 
and  there  to  carry  about  and  manage  his  ‘  peculiar 
property',’  where  and  how  he  pleases.’  Our  Massa¬ 
chusetts  fathers  were  a  sturdy,  business  like  set  of 
men — and  a  pretension  like  this,  if  gravely  put  for¬ 
ward,  would  have  proved  a  great,  if  not  insurmount¬ 
able  objection  to  the  new  constitution.  The  constitu¬ 
tion  undoubtedly  expressed  the  meaning  of  the  par¬ 
ties,  and  it  expressed  their  whole  meaning. 

5. — Another  view  may  be  found  worthy  of  a  pass¬ 
ing  notice.  The  application  of  the  law  of  the  foreign 
domicil  will  be  found  to  be  chiefly  confined  to  cases 
of  mere  contract.  In  respect  to  the  domestic  rela¬ 
tions,  comity  cannot  be  allowed  so  wide  a  range.  The 
affections  and  duties  belonging  to  those  relations  give 
more  than  any  thing  else,  character  and  individuality 
to  a  people  ;  and  their  condition  and  regulation  mark 
the  progress  of  a  people  in  civilization,  far  more  than 
their  laws  of  contract.  A  Mansfield  may  produce  a 
mercantile  code  for  the  world,  out  of  the  stores  of 
learning  and  wisdom  in  his  own  great  mind  : — a  Hus- 
kisson  may  remodel  the  commercial  system  ot  his  na¬ 
tion  ; — but  it  is  only  Time,  the  innovator,  that  can 
bind  or  loose  the  ties  around  the  homes  and  hearts  of 
a  people.  Hence  the  slowness  and  difficulty  with 
which  foreign  laws  and  usages  on  these  subjects  are 
allowed  to  intermingle  with  domestic  habits  and  pre¬ 
judices.  Indeed  any  considerable  variation  from  our 
particular  mode  of  sustaining  the  domestic  relations, 
is  punishable  as  a  public  offence.  Take  the  case  of 
marriage.  Marriage  is  a  contract,  and  therefore  the 
lex  loci  contractus  is  permitted  to  decide  what  con¬ 
stitutes  a  marriage,  but  as  it  is  a  domestic  bond,  the 
same  law  cannot  be  allowed  to  regulate  its  rights  and 
duties.  We  have  a  tradition  that  Judge  Buffer  ruled 
in  favor  of  the  husband’s  right  to  administer  cor¬ 
rection  to  his  wife,  by  beating  If  such  were  the 
law  of  England  could  an  English  husband  visiting  this 
country  be  allowed  to  exercise  such  authority  here  ? 
May  a  travelling  Turk  bring  with  him  his  hundred 
wives  ?  Might  a  Hindoo  wife  be  immolated  here,  on 
her  husband’s  funeral  pile  ?  Consider,  too,  the  paren¬ 
tal  relation.  Child-murder  was  lawful  in  the  ancient 


world.  It  is  so  still  in  China  and  the  South  Sea.  But 
here,  even  the  much  less  severe  exercises  of  parental 
authority,  allowed  over  half  Christendom,  would  not 
be  tolerated.  Suppose  a  foreign  guardian  and  ward  to 
visit  Massachusetts — no  circumstance  would  justify 
his  introducing  here  the  barbarous  incidents  of  the 
feudal  wardship.  And  so,  too,  we  acknowledge  the 
relation  of  master  and  servant,  when  it  is  founded  on 
mutual  advantage, — but  we  cannot  voluntarily  recog¬ 
nize  it  in  the  form  of  slavery,  in  which  the  benefit  is 
all  on  one  side.  It  is  evident  that  such  violations  of 
right  as  those  I  have  instanced,  are  more  readily  con¬ 
demned  than  immoralities  which  do  not  touch  the  do¬ 
mestic  connexions. 

I  offer  these  preliminary  suggestions  as  general 
cautions  in  respect  to  the  admission  of  the  principle  of 
comity.  I  proceed  next  to  enumerate  the  exceptions 
laid  down  by  legal  text  writers,  to  the  general  admis¬ 
sibility  of  the  lex  loci,  with  a  view  to  ascertain  wheth¬ 
er  the  present  case  does  not  fall  within  one  or  more  of 
those  exceptions. 

It  is  laid  down  on  the  highest  authority,  as  ‘  a  neces¬ 
sary  exception  to  the  universality  of  the  rule  [of  com¬ 
ity,]  that  no  people  are  bound  to  enforce  or  hold  valid 
in  their  courts  of  justice,  any  contract  [or  law,]  Which  ’ 
—  1. — ‘  offends  their  morals, — or, 2. — contravenes  their 
policy — or,  S. — violates  a  public  law  ’(l) — or,  4. — 
which  offers  a  pernicious  example. (2) 

1. — Slavery  is  within  the  first  exception.  It  is  of¬ 
fensive  to  morals. 

In  going  somewhat  at  large  into  the  moral  charac¬ 
ter  of  slavery,  as  I  here  feel  it  my  duty  to  do,  I  have 
been  met  by  the  objection,  that  the  morality  of  this 
or  of  any  other  institution  can  only  be  estimated  in  a 
court  of  law,  by  a  legal  standard.  I  admit  the  posi¬ 
tion  fully.  I  only  deny  its  application.  The  case 
now  before  the  court  is  one  of  novel  impression  in 
Massachusetts.  Slavery  has  never,  till  now,  appear¬ 
ed  in  this  guise  before  our  judicial  tribunals,  and  its 
character,  in  this  particular  aspect,  remains  yet  to  be 
settled.  To  a  certain  extent  and  in  a  special  class  of 
cases,  I  may  be  estopped  by  the  constitution  of  the  U. 
S.,  as  my  brother  opposite  has  assumed,  from  assert¬ 
ing  the  immorality  of  slavery — but  when  the  ques¬ 
tion  is,  whether  the  slave  system  shall  be  carried  to  a 
greater  extent  than  heretofore,  and  to  a  new  case,  not 
touched,  as  I  believe,  by  the  constitution,  the  enquiry 
as  to  the  general  tendency  and  abstract  character  of 
that  system  becomes  material.  Repeating,  therefore, 
that  I  am  now  treating  the  question  as  one  of  general 
international  law,  and  deferring  to  a  subsequent  stage 
in  my  remarks  the  discussion  of  its  constitutional  bear¬ 
ing,  I  ask  the  indulgence  of  the  court  while  I  endeav- 

(1)  2  Kent  Com.  457 — Story  Confl.  95. 

(2)  6  Mass.  Rep.  358. 


17 


Ellis  Gray  Poring,  Esq.,  for  the  Petitioner. 


or  to  show,  chiefly  by  way  of  authority,  the  immoral¬ 
ity  of  slavery. 

The  testimony  of  Ethical  writers  against  slavery  is 
unanimous  and  decisive.  I  refer,  however,  to  but  a 
single  text  book,  the  latest  and  perhaps  the  most  sat¬ 
isfactory  which  has  yet  appeared.  President  Way- 
land  says(l)  of  slavery — ‘Its  effects  must  be  dis¬ 
astrous  upon  the  morals  of  both  parlies.  By  present¬ 
ing  objects  on  whom  passion  can  be  satiated  without 
resistance  and  without  redress,  it  cultivates  in  the 
master,  pride,  anger,  cruelty,  selfishness  and  licen¬ 
tiousness.  By  accustoming  the  slave  to  subject  his 
moral  principles  to  the  will  of  another,  it  tends  to  abol¬ 
ish  in  him  all  moral  distinction,  and  thus  fosters  in 
him,  lying,  deceit,  hypocrisy,  dishonesty,  and  a  will¬ 
ingness  to  yield  himself  up  to  minister  to  the  appe¬ 
tites  of  his  master.’ 

Writers  on  natural  law  are  equally  clear.  Slavery 
is  condemned  by  its  very  definition.  Grotius  call  it(2) 
‘  An  obligation  to  give  all  our  labor  for  a  supply  of  the 
bare  necessities  of  life.’  This  definition  is  however, 
as  Rutherforth  has  remarked, (3)  too  restricted,  as  the 
power  of  the  master  applies  not  only  to  the  slave’s  la¬ 
bor,  but  to  all  his  other  actions.  In  distinguishing 
the  authority  of  a  parent  from  that  of  a  master,  this 
author  says(4) — 

‘  The  good  of  the  child  is  the  end  to  which  the  au¬ 
thority  of  the  parent  over  the  child  is  directed  ;  and 
the  good  of  the  master  is  the  end  to  which  the  author¬ 
ity  of  the  master  over  the  slave  is  directed.  The  pa¬ 
rent  has  no  right  to  command  the  child,  but  in  view 
to  the  benefit  of  the  child  itself ;  the  master  has  a 
right  to  command  the  slave  to  do  such  actions  as  are 
for  the  master’s  benefit :  so  that  however  the  slave 
may  find  his  account  in  obeying  his  master’s  com¬ 
mands,  this  is  merely  accidental ;  since  the  master’s 
right  to  give  these  commands  has  another  purpose 
principally  in  view.’ 

It  requires  indeed  but  a  short  course  of  reasoning  to 
show  the  inherent  selfishness  and  injustice  of  slavery. 
Elementary  writers  illustrate  the  origin  of  property 
by  saying  that  when  one  savage  has  plucked  a  cocoa- 
nut  from  the  tree,  no  other  savage  can  wrest  it  from 
his  hands,  without  a  perception  of  injustice  arising. 
The  moral  instinct  speaks  out  at  once.  But  what  else 
is  slavery,  than  a  regular  system  by  which  one  man 
is  all  his  life  compelled  to  pluck  cocoa-nuts  that  anoth¬ 
er  may  eat  them  ? 

The  most  eminent  Statesmen  of  the  South  have  con¬ 
curred  with  the  moralist  and  the  civilian  on  this  sub¬ 
ject. (5)  I  shall  not  press  their  evidence  upon  the 

( 1 )  Wayland’s  Elements  of  Moral  Science,  209. 

(2)  Grot.  Lib.  Cap.  5  §  27. 

(3)  Instit.  Nat.  Law,  Book  1,  chap.  20. 

(4)  Ibid. 

(5)  Take  as  specimens  the  following  : — 

‘  Is  it  not  amazing,  that  at  a  time  when  the  rights 
of  humanity  are  defined  with  precision,  in  a  country 


court,  though  they  are  witnesses  to  this  point,  of  the 
highest  credibility.  Indeed  on  a  question  of  general 
morals  rather  than  of  municipal  or  local  law,  a  far 
wider  range  might  be  taken  than  I  shall  permit  to  my¬ 
self  now.  The  prevailing  tone  of  literature  respect¬ 
ing  slavery,  and  the  general  sense  and  judgment  of 
the  majority  of  the  civilized  world,  are  clear  and  com¬ 
petent  evidence  in  my  favor.  But  I  pass  from  these, 
to  enquire  what  view  is  taken  of  the  moral  character 
of  slavery,  by  the  authoritative  expounders  of  out¬ 
law.  The  case  of  Sommersett,  decided  in  1772,  was 
mainly  argued  and  determined  on  the  ground  of  sla¬ 
very’s  being  corrupt  and  immoral.  The  air  of  Eng¬ 
land  was  declared  to  be  too  pure  for  slaves  to  breathe 
in.  This  principle  has  been  recognized  in  numerous 
English  cases  since,  and  very  recently,  in  the  case  of 
Forbes  v  Cochrane,  (6)  where  it  was  decided  by 
the  Court  of  King’s  Bench,  that  thirty-eight  slaves, 
who  had  escaped  from  a  plantation  in  East  Florida, 
to  an  English  ship  of  war  on  the  high  seas,  became 
hereby  free.  The  noble  opinion  of  Sir  William  Best, 
in  that  case,  does  him  equal  honor  as  a  lawyer  and  a 
man.  He  does  not  hesitate  to  stigmatize  the  British 
toleration  of  Slavery  in  their  West  India  possessions 

above  all  others  fond  of  liberty,  that  in  such  an  age, 
and  in  such  a  country,  we  find  men,  professing  a  re¬ 
ligion  the  most  humane  and  gentle,  adopting  a  princi¬ 
ple  as  repugnant  to  humanity,  as  it  is  inconsistent 
with  the  Bible,  and  destructive  to  liberty  ?  ’ — Patrick 
Henry. 

*  Iniquitous  and  most  dishonorable  to  Maryland,  is 
that  dreary  system  of  partial  bondage,  which  her  laws 
have  hitherto  supported  with  a  solicitude  worthy  of  a 
better  object,  and  her  citizens  by  their  practice  coun¬ 
tenanced. 

‘  Founded  in  a  disgraceful  traffic,  to  which  the  pa¬ 
rent  country  lent  her  fostering  aid,  from  motives  of 
interest,  but  which  6ven  she  would  have  disdained  to 
encourage,  had  England  been  the  destined  mart  of 
such  inhuman  merchandise,  its  continuance  is  as 
shameful  as  its  origin. —  JVm.  Pinckney's  Speech  in 
the  Maryland  House  of  Delegates. 

‘  With  what  execration  should  the  statesman  be 
loaded,  who,  permitting  one  half  of  the  citizens  to 
trample  on  the  rights  of  the  other,  transforms  those 
into  despots,  and  these  into  enemies;  destroys  the 
morals  of  one  part,  and  the  amor  patrice  of  the  other. 

‘  And  can  the  liberties  of  the  nation  be  thought  se¬ 
cure,  when  we  have  refused  the  only  firm  basis,  a 
conviction  in  tbe  minds  of  the  people  that  these  liber¬ 
ties  are  the  gift  of  God  ?  That  they  are  not  to  be  vio¬ 
lated  but  with  his  wrath  ?  Indeed,  I  tremble  for  my 
country,  when  I  recollect  that  God  is  just ;  that  his 
justice  cannot  sleep  forever;  that,  considering  num¬ 
bers,  nature  and  natural  means  only,  a  revolution  in 
the  wheel  of  fortune,  an  exchange  of  situation  is 
among  possible  events ;  and  that  it  may  become  prob¬ 
able  by  a  supernatural  interference.  The  Almighty 
has  no  attribute  which  can  take  side  with  us  in  such 
a  contest.’ — Jefferson's  Motes  on  Virginia. 

(6)  2  Barn,  and  Cressw.  458 — 3  Dowl.  and  Ryl. 
698.  S.  C. 


13 


Ellis  Gray  Lnring ,  Esq.,  for  the  Petitioner. 


its  '  the  crime  of  the  nation,’  and  denounces  the  law 

recognizing  slavery  as  ‘  an  unchristian  law,  and  one 
«\hioh  violates  the  rights  of  nature,  and  therelore  not 
to  he  recognized  hete.’  ‘  The  proceedings  in  our 
Courts,'  says  that  eminent  Judge,  ‘  are  founded  upon 
the  law  of  England,  and  that  law  is  again  founded  on 
the  law  of  nature  and  the  revealed  law  ot  God.  If 
the  right  sought  to  be  enforced,  is  inconsistent  with 
either  of  these,  the  English  Municipal  Courts  cannot 
recognize  it.’  It  appears  that  the  foreign  Admiralty 
cases  read  by  my  brother  on  the  other  side,  were  cit¬ 
ed  and  commented  on  in  that  case.  After  solemn  ar¬ 
gument,  the  opinion  ot  the  court  in  favor  ot  lreedotn 
was  unanimous. 

These  are  foreign  authorities,  and  relate  to  foreign 
servitude.  Before  looking  for  the  lights  of  our  own 
jurisprudence  on  the  subject,  I  ask  leave  to  define,  in 
a  more  especial  manner,  wbat  is  Slaver}',  as  it  exists 
among  us. 

For  this  purpose,  I  shall  read  from  ‘  Stroud’s  Sketch 
«f  the  Laws  relating  to  Slavery,’  (an  accurate  and 
valuable  compendium)  the  following  propositions,  de¬ 
scribing  the  incidents  of  American  Slavery.  For  the 
most  ample  proof  of  each,  I  refer  to  the  work  itself, 
where  the  codes,  statutes,  judicial  decisions,  &c.  of  the 
several  States,  on  Slavery,  are  digested. 

*  Prop.  1.  The  master  may  determine  the  kind  and 
degree,  and  time  of  labor,  to  which  the  slave  shall  be 
subjected. 

‘  Prop.  2.  The  master  may  supply  the  slave  with 
such  food  and  clothing  only,  both  as  to  quantity  and 
quality,  as  he  may  think  proper  or  find  convenient. 

‘  Prop.  3.  The  master  may,  at  his  discretion,  inflict 
any  punishment  upon  the  person  of  his  slave. 

<  Prop.  4.  All  the  power  of  the  master  over  his 
his  slave  may  be  exercised  not  by  himself  only  in 
person,  but  by  anyone  whom  he  may  depute  as  his 
agent. 

<  Prop.  5.  Slaves  have  no  legal  rights  of  property 
in  things,  real  or  personal  •,  but  whatever  they  may 
acquire,  belongs,  in  point  of  law’,  to  their  masters. 

«  Prop.  0.  The  slave  being  a  personal  chattel,  is  at 
all  times  liable  to  be  sold  absolutely,  or  mortgaged  or 
leased  at  the  will  of  his  master. 

‘  Prop.  7.  He  may  also  be  sold  by  process  of  law 
lor  the  satisfaction  of  the  debts  of  a  living,  or  the 
debts  and  bequests  of  a  deceased  master,  at  the  suit  of 
creditors  or  legatees. 

‘  Prop.  8.  A  slave  cannot  be  a  party  before  a  judi¬ 
cial  tribunal,  in  any  species  of  action,  against  his  mas¬ 
ter,  no  matter  how  atrocious  may  have  been  the  in¬ 
jury  received  from  him. 

Prop.  9.  Slaves  cannot  redeem  themselves,  nor 
obtain  a  change  of  masters,  though  cruel  treatment 
may  have  rendered  such  change  necessary  for  their 
personal  safety. 

‘  Prop.  10.  Slaves  being  objects  of  property,  if  in¬ 
jured  by  third  persons,  their  owners  may  bring  suit, 
nnd  recover  damages  for  the  injury. 

«  Prop.  11.  Slaves  can  make  no  contract. 

‘  Prop.  12.  Slavery  is  hereditary  and  perpetual.’ 

I  hold  in  my  hand  another  brief  delineation  of 


American  Slavery.  It  is  accurate  and  most  expres¬ 
sive,  but  its  plainness  of  speech  is  so  remarkable,  that 
1  hesitate  to  read  it,  before  T  shtll  have  premised  that 
its  author  is  the  Rev.  Robert.  J.  Breckinridge,  a 
southern  clergyman  of  great  eminence,  at  this  mo¬ 
ment  a  representative  from  (he  Presnyterian  churches 
of  the  United  States  to  those  of  England  and  Scotland, 
but  perhaps  principally  distinguished  as  an  uncompro¬ 
mising  opponent  of  the  Immediate  Abolitionists.  In 
a  speech  delivered  by  Mr.  B.,  he  asks: 

‘  What,  then,  is  slavery  ?  for  the  question  relates  to 
the  action  of  certain  principles  on  it,  and  to  its  probable 
and  proper  results;  what  is  slavery  as  it  exists  among 
us  ?  We  reply,  it  is  that  condition  enforced  by  the  laws 
of  one-half  the  States  of  this  confederacy,  in  which  one 
portion  of  the  community,  called  masters,  is  allowed 
such  power  over  another  portion  called  slaves  ;  as 

‘  1.  To  deprive  them  of  the  eutire  earnings  of  their 
labor,  except  only  so  much  as  is  necessary  to  continue 
labor  itself,  by  continuing  heathlul  existence  ;  thus 
committing  clear  robbery  ; 

‘  2.  To  reduce  them  to  the  necessity  of  universal 
concubinage,  by  denying  to  them  the  civil  rights  of 
marriage  ;  thus  breaking  up  the  dearest  relations  of 
life,  and  encouraging  universal  prostitution  ; 

‘  3.  To  deprive  them  of  'he  means  and  and  oppor¬ 
tunities  of  moral  and  intellectual  culture — in  many 
States  making  it  a  high  penal  offence  to  teach  them  to 
read  ;  thus  perpetuating  whatever  of  evil  there  is  that 
proceeds  from  ignorance  ; 

‘4.  To  set  up  between  parents  and  their  children 
an  authority  higher  than  the  impulse  of  nature  and  the 
laws  of  God  ;  which  breaks  up  the  authority  of  the 
father  over  his  own  offspring,  and,  at  pleasure  separ¬ 
ates  the  mother  at  a  returnless  distance  from  her  child; 
thus  abrogating  the  clearest  laws  of  nature  ;  thus 
outraging  all  decency  and  justice,  and  degrading  and 
oppressing  thousands  upon  thousands  of  beings  creat¬ 
ed  like  themselves  in  the  image  of  the  most  high 
God! 

‘  This  is  slavery  as  it  is  daily  exhibited  in  every 
slave  State.’ 

I  give  lastly,  the  concise  and  comprehensive  defini¬ 
tion  of  a  Slave,  contained  in  the  Louisiana  Code,  as 
the  most  pertinent  to  the  present  stage  of  our  enquiry, 
and  as  exceeding  all  others  ever  framed  for  effecting 
the  entire  piivation  of  all  rights. 

•  A  slave  is  one  who  is  in  the  power  of  a  master  to 
whom  he  belongs.  The  master  may  sell  him,  dispose 
of  his  person,  his  industry  and  his  labor:  he  can  do 
nothing,  possess  nothing,  nor  acquire  any  thing  but 
what  must  belong  to  his  master.’  (1) 

The  moral  judgment  which  the  laws  of  Massa¬ 
chusetts  passed  on  this  system  was  early  and  deci¬ 
sive.  Not  to  go  back  of  the  Declaration  of  Rights,  at 
present,  the  people  of  Massachusetts,  in  (he  year 
1780,  declared  through  their  organic  law,  that  ‘All 
men  are  born  free  and  equal,  and  have  certain  natu 
ral,  essential,  and  inalienable  rights,  among  which 
may  be  reckoned  the  rights  of  enjoying  and  defend¬ 
ing  their  lives  and  liberties ;  that  of  acquiring  ‘pos- 


(1)  Civil  Code,  Art.  36. 


V 


19 


Ellis  Gray  Loring,  Esq.,  for  the  Petitioner, 


sessing  and  protecting  property  ;  in  fine,  that  of  seek* 
ing  and  obtaining  safety  and  happiness.’ 

Observe  that  the  Constitution  goes  on  the  moral 
ground.  Liberty  is  a  ‘  natural  right.’  Slavery  then 
is  a  violation  of  the  law  of  nature.  And  what  is  the 
law  of  nature  ?  It  is  synonymous  with  the  law  of 
God,  and  comprises  ‘  those  rules  of  justice,  which 
ought  to  govern  the  conduct  of  men,  as  moral  and 
accountable  beings,  living  in  a  social  state,  indepen¬ 
dently  of  positive  human  institutions  ’  (1)  But  the  Con¬ 
stitution  further  declares  Liberty  to  be  an  *  essemial 
right.’  Then  is  slavery  essential  wrong — concentra¬ 
ted  injustice.  Again, — Men  are  born  free — and  free¬ 
dom  is  ‘  inalienable  ’ — must  it  not  then  be  a  part  ot 
their  moral  being  ? 

The  cases  of  Winchendon  v.  Hatfield  (2)  and  of 
Greenwood  v.  Curtis,  with  the  brief  reports  of  elder 
decisions  contained  in  the  notes  to  the  former  case, 
abundantly  confirm  my  position  that  Slavery  was 
abolished  in  Massachusetts,  from  a  conviction  of  its 
immoral  nature.  From  the  opinion  of  Judge  Sedg¬ 
wick  (3)  in  Greenwood  v.  Curtis,  I  will  read  a  single 
paragraph : 

‘  The  previous  question,  whether  such  a  contract 
as  this  under  consideration  be  immoral,  unrighteous, 
irreligious, — whether  the  execution  of  such  a  con¬ 
tract  be  consistent  with  the  rights  of  our  fellow  men, 
or  with  the  duty  we  owe  to  our  God, — will  not  be 
made  the  subject  of  an  argument.  So  strong  and  so 
natural  is  the  abhorrence  ot  slavery,  in  the  heart  of  a 
man  unpolluted  by  its  practice  ;  so  opposed  to  the 
just  principles  on  which  our  revolution  was  founded  ; 
and  so  contrary  to  the  mild,  merciful,  and  benignant 
dictates  of  the  holy  religion  we  profess;  that  a  labor¬ 
ed  discussion  of  the  question  is  deemed  to  be  super¬ 
fluous.’ 

Reluctant  as  I  feel  to  touch  the  confines  of  theolog¬ 
ical  discussion,  I  cannot  excuse  myself,  in  closing 
these  remarks  on  the  moral  character  of  slavery,  from 
a  brief  allusion  to  the  opinion  which  has  sometimes 
been  held,  that  slavery  has  the  sanction  of  revealed 
religion  in  its  favor.  So  deeply  responsible  do  I  feel 
to  the  sacred  cause  I  plead,  that  I  dare  not  withhold 
any  argument,  which  carries  force  to  my  own  mind. 

Slavery  was  permitted  or  appointed  by  the  Deity, 
under  the  elder  dispensation,  expressly  as  a  punish¬ 
ment  upon  certain  conquered  nations,  for  their  idola¬ 
try  and  other  entries.  It  was  ordained  as  a  national 
judgment,  in  the.  same  manner  as  the  utter  and  piti- 

(1)  Wheat.  Internat.  Law,  36. 

(2)  4  Mass.  Rep.  128. 

(3)  6  Mass.  Rep.  366.  This  case  was  decided  by 
the  rest  of  the  Court,  contrary  to  Judge  Sedgwick’s 
opinion  ; — but  not  on  grounds  impeaching  his  main 
principle, — the  immorality  of  the  slave  trade.  They 
held  that  the  contract  could  be  analyzed,  and  the 
sound  part  separated  from  those  which  were  infected 
by  the  immorality  of  the  trade.— See  praise  of  Sedg¬ 
wick’s  opinion,— Story,  Confl.  215  in  note. 


less  extermination  of  every  breathing  fliirig  was  com¬ 
manded  in  the  case  of  some  of  the  captured  cities  of 
Canaan.  When  the  slavery  of  the  blacks  cati  plead 
either  a  like  origin  or  a  similar  divine  commission,  it 
may  with  more  confidence,  plead  in  justification  the 
example  of  the  Jews.  Unfortunately  it  is  not  more 
deficient  in  these,  than  in  the  mild  and  merciful  reg¬ 
ulations,  that  mitigated  the  harshness  of  Hebrew  ser¬ 
vitude.  Gross  cruelty  towards  a  slave  entitled  him  1o 
freedom.  (4)  Perpetual  slavery  was  unknown  ; — all 
slaves  without  exception  being  set  free  at  the  jubilee 
or  fiftieth  year.  (5) 

Finding  in  the  records  of  Christianity  no  direct  de¬ 
nunciation  of  slavery  in  terms,  we  are  sometimes  told 
that  Christianity  does  not  condemn  it.  This  arises 
from  a  misapprehension  of  the  business  of  Christian¬ 
ity — Christianity  does  not  so  much  claim  to  be  a  body 
of  ordinances,  as  a  quickening  spirit.  It  came  not  to 
attack  particular  forms  of  evil  but  to  proclaim  correct¬ 
ive  principles.  It  generally  does  not  so  much  as  name 
the  vicious  institutions  of  its  time,  for  it  was  design¬ 
ed  to  outlive  even  the  memory  of  them.  (6)  The 
founder  of  our  religion  built  tor  Eternity'.  He  rarely 
touched  the  political  or  social  arrangements  of  his  own 
day,  but  he  set  in  motion  influences  which  will  he 
felt  forever  and  which  must  ultimately  overthrow 
every  form  of  vice  and  oppression  on  earth.  His  re¬ 
ligion  prostrates  human  selfishness,  in  enjoining  us  to 
do  to  others  as  we  would  have  them  do  to  us  :  and 
subverts  political  and  personal  slavery  by  teaching  the 

(4)  Exodus,  Ch.  21,  v.  26,  27. 

(5)  15  Deut.  12 — 14,-25  Levit.  8 — 10. —  In  a  de¬ 
bate  on  the  Slave  Trade,  in  the  House  of  Lords,  June 
24,  1806,  the  celebrated  Bishop  Horsley,  in  reply  to 
the  Earl  of  Westmoreland,  said  ‘  The  noble  Earl  has 
produced  to  your  Lordships  a  passage  in  the  Levitical 
Law,  which  enacts  that  the  foreign  slave  should  be 
the  property  of  his  master  forever.  Whence  the  no¬ 
ble  Earl  concludes,  that  the  perpetual  servitude  of 
foreign  slaves  was  actually  sanctioned  hy  the  law. 
But,  my  Lords,  I  must  tell  the  noble  Earl,  and  1  must 
tell  your  Lordships,  that  the  noble  Earl  has  no  under¬ 
standing  at  all  ot  the  technical  terms  of  the  Jewish 
Law.  In  all  the  laws  relating  to  the  transfer  of 
property,  the  words  for  ever,  signify  only  to  the  next 
jubilee.  That  is  the  longest  forever,  which  the  Jew¬ 
ish  law  knows,  with  respect  to  property.  And  this 
law,  which  makes  the  foreign  slave  the  property,  of 
his  master  forever,  makes  him  no  longer  the  master’s 
property  than  to  the  next  jubilee.  And,  with  the 
great  attention  the  noble  Earl  has  given  to  the  laws 
and  history  ot  the  Jews,  he  must  know,  that  when 
they  were  carried  into  captivity,  they  were  told  by 
their  prophets,  that  one  of  the  crimes,  which  drew 
down  that  judgment  upon  them,  was  their  gross  neg¬ 
lect  and  violation  of  these  merciful  laws  respecting 
manumission  ;  and  that  in  contempt  and  defiance  of 
the  law,  it  had  been  their  practice  to  hold  their  for¬ 
eign  slaves  in  servitude,  beyond  the  year  of  jubilee.’ 
— 20  Howell’s  State  Trials,  32  note. 

(6)  See  Wayland’s  Remarks — Elem.  Mor.  Sci.  213. 


20 


Ellis  Gray  Loring,  Esq.,  for  the  Petitioner. 


brotherhood  of  men.  If  however  its  author’s  main 
purpose  had  been  to  abolish  slavery,  I  know  not  how 
he  could  have  described  his  mission  in  more  signifi¬ 
cant  terms,  than  by  declaring,  at  the  very  opening  of 
his  ministry,  that  he  came  to  preach  the  gospel  to  the 
poor,  (1)  to  proclaim  deliverance  to  the  captives;  to 
set  at  liberty  them  that  are  bruised. 

Slavery  then  is  contrary  to  good  morals; — a  vio¬ 
lation  of  the  law  of  nature,  and  of  the  revealed  will 
of  God.  It  therefore  falls  within  the  first  exception 
to  the  exercise  of  national  comity. 

2.  But  it  is  also  within  the  second  exception.  It 
contravenes  our  policy.  If  the  slave  system  of  Lou¬ 
isiana  is  to  be  introduced  here,  in  the  most  limited 
extent,  it  v. ’ll  be  an  entire  novelty  among  us.  Mas¬ 
sachusetts  has  known  nothing  like  it.  The  slavery 
that  was  abolished  here  nearly  sixty  years  since,  re¬ 
sembled  little  more  than  in  name,  the  hard  bondage 
of  the  South.  In  the  Massachusetts  Colony,  as  early 
as  1641,  1  it  is  ordered  by  the  Court  and  the  author¬ 
ity  thereof,  that  there  shall  never  be  any  bond-sla¬ 
very,  villenage,  or  captivity  among  us,  unless  it  be 
[such]  lawful  captives  taken  in  war,  as  willingly  sell 
themselves,  or  are  sold  to  us;  and  such  shall  have 
the  liberties  and  Christian  usage ,  which  the  law  of 
God,  established  in  Israel  concerning  such  persons, 
doth  morally  require. (2)  This  law  was  not  a  dead 
letter.  Chief  Justics  Parsons  says,  (3)  ‘  If  the  mas¬ 
ter  was  guilty  of  a  cruel  or  unreasonable  castigation 
of  his  slave,  he  was  liable  to  be  punished  ior  a  breach 
of  the  peace,  and  1  believe  the  slave  was  allowed  to 
demand  sureties  of  the  peace,  against  a  violent  and 
barbarous  master.  Under  these  regulations,  the 
treatment  of  slaves  was  in  general  mild  and  humane, 
and  they  suffered  hardships  not  greater  than  hired 
servants.’ 

Throughout  New  England,  it  is  believed  (hat  Sla¬ 
very  •  was  very  far  from  being  oi  the  absolute,  rigid 
kind.  The  master  was  as  liable  to  be  sued  by  the 
slave,  in  an  action  for  beating  or  wounding,  or  for 
immoderate  chastisement,  as  he  would  be,  if  he  had 
thus  treated  an  apprentice.  A  slave  was  capable  of 
holding  property,  in  character  of  devisee  or  legatee. 

(1)  To  two  millions  of  whom,  the  Gospel  is,  in  this 
country,  practically  denied.  The  official  report  of 
the  Presbyterian  Synod  of  South  Carolina  and  Geor¬ 
gia,  published  March  22,  1831,  contains  the  following 
statements — ‘  In  this  Christian  Republic,  there  are 
over  two  millions  of  human  beings,  in  the  condition  of 
Heathen,  and  in  some  respects  in  a  worse  condition. 
Their  moral  and  religious  condition  is  such,  as  that 
they  may  justly  be  considered  the  heathen  of  this 
Christian  country,  and  will  bear  comparison  with 
heathen  in  any  country  in  the  world.  The  negroes 
are  destitute  of  the  privileges  of  the  gospel,  and  ever 
will  be  under  the  present  state  of  things.’ 

(2)  General  Laws  and  Liberties  of  Massachusetts  Bav. 
Chap.  12  §  2. 

(3)  Winchendon  v.  Hatfield  4  Mass.  Rep.  127. 


If  the  master  ihould  take  away  such  property,  hia 
slave  would  be  entitled  to  an  action  against  him,  by 
his  prochein  ami.  Slaves  had  the  same  right  of  life 
and  property, as  apprentices;  and  the  difference  be¬ 
tween  them  was  this  :  an  apprentice  is  a  servant  for 
time,  and  the  slave  is  a  servant  for  life. ’(4) 

If  the  slavery  of  Massachusetts  differed  only  in  its 
duration  from  apprenticeship,  it  follows,  that  the 
subject  of  it  could  not  have  been  removed  without 
his  consent,  out  of  the  Common  wealth, (5)  as  the  re¬ 
spondent  claims  should  be  done  with  the  subject  of 
the  present  suit.  Negro  slavery  in  this  state  was 
far  milder  than  the  ancient  English  villenage  (6) — 
But  even  the  villien  could  not  be  carried  oulof  Eng¬ 
land. (7) 

The  Declaration  of  Independence,  though  not 
having  the  force  of  law,  must  be  considered  as  the 
expression  of  our  fundamental  policy.  It  was  our 
initiatory  act  as  a  nation,  dictated  by  ‘  a  decent  re¬ 
spect  to  the  opinions  of  mankind;’  a  manifesto  in 
which  we  set  forth  to  the  world  the  self-evident 
principles,  which  were  to  form  the  basis  of  our  ris¬ 
ing  institutions. 

Our  own  Declaration  of  Rights,  and  the  judicial 
decisions  founded  on  it,  are  indicatory  of  the  same 
policy.  The  course  taken  by  Massachusetts  on  the 
Missouri  question,  points  in  the  same  direction.  To 
adopt  the  expressive  language  ol  the  resolutions  on 
slavery,  adopted  at  a  recent  meeting  of  citizens  in 
our  Faneuil  Hall,  1  Our  laws  do  not  authorize  it — 
our  principles  revolt  against  it — our  citizens  will  not 
tolerate  its  existence  among  them.’ 

Slavery  falls  within  the  third  exception.to  the  rule 
of  national  comity.  It  violates  our  public  law.  The 
law  of  this  Commonwealth,  on  slavery,  from  the 
adoption  of  the  Constitution  of  Massachusetts  to  the 
ratification  of  the  Federal  Constitution,  was,  to  all 
intents  and  purposes,  the  same  with  the  law  of  Eng¬ 
land.  It  had  been  settled  in  Somersets  case, (8)  in 
1772,  that  the  common  law  abhors,  and  will  not  en¬ 
dure  the  existence  of  slavery  on  English  soil.  This 
was  an  unbending  principle.  We  have  seen  its  ap¬ 
plication,  when  enlarged  to  the  British  Colonial  pos¬ 
sessions,  in  the  case  of  the  American  slaves  forced 
into  Bermuda,  and  there  discharged  on  habeas  cor¬ 
pus.  This  was  no  unadvised  act  of  the  local  au¬ 
thorities.  It  was  sett  ed  law.  ‘  In  consequence  of 
this  decision  [in  Sommersct's  case]  ’  says  Air.  Chris¬ 
tian,  ‘  if  a  ship  loadcn  with  slaves  was  obliged  to  put 
into  an  English  harbor,  all  the  slaves  on  board  might 

(4)  Reeve  Dom.  Rel.  340 — 2  Dane  Abr.  313. 

The  master  had  no  control  over  the  religion  of  the 
slave. — Ibid. 

(5)  Reeve,  340. 

(6)  2  Dane  Abr.  313. 

(7)  20  Howell  State  Trials,  66. 

(8)  20  Howell,  State  Trials,  70. 


21 


Ellis  Gray  Loring,  Esq.,  For  the  Petitioner. 


and  ought  to  be  set  at  liberty. ’(1)  In  Forbes  vs. 
Cochrane  (2)  a  similar  doctrine  was  held. 

Now  I  ask  the  court  to  look  at  the  language  of  our 
Declaration  of  Rights,  and  say  whether  Sommer- 
sett’s  case  could  have  settled  a  broader  principle  for 
England,  than  our  State  constitution  establishes  for 
us.  When  that  instrument  declares,  that  all  men 
are  born  free,  and  that  freedom  is  ‘  unalienable,’  it 
covers  the  whole  ground.  It  was  followed  by  judi¬ 
cial  decisions,  applying  its  principles  to  the  case  of 
Massachusetts  slaveiy. 

‘  Slavery  was  introduced  into  this  country,’  says 
Parsons,  C.  J.,  ‘soon  after  its  first  settlement,  and 
was  tolerated  until  the  ratification  of  the  present 
constitution, —  but  at  the  first  action  which  came  be¬ 
fore  the  court  after  the  establishment  of  the  Consti¬ 
tution,  the  judges  declared,  that  by  viitue  of  the 
Declaration  of  Rights,  slavery  in  this  state  was  no 
more. ’(3) 

Again,  all  the  component  parts  of  slavery  are  for¬ 
bidden  by  our  law.  If  the  parts  are  forbidden,  is 
not  that  a  prohibition  of  the  whole  ?  Slavery  is  a 
collection  of  abuses — of  various  invasions  of  person¬ 
al  rights.  If  our  law  will  not  permit  a  man  to  beat 
his  neighbor,  to  kidnap  or  sell  him  into  exile,  to  for¬ 
bid  his  marriage,  to  rob  him  of  his  children,  to  de¬ 
prive  him  of  education,  to  plunder  him  of  his  earn¬ 
ings,  shall  we  be  told  that  it  will  allow  a  system 
which  is  an  aggregate  of  all  these  offences?  No 
parts  of  this  system  could  be  tolerated,  but  by  posi¬ 
tive  law.  Are  we  to  introduce  the  whole  through 
comity  ? 

4.— A  fourth  exception  to  the  admission  of  foreign 
laws  by  comity  has  been  stated  to  be,  where  they 
would  set  before  our  citizens  a  pernicious  and  de¬ 
testable  example.  It  is  indeed  asserted,  on  the  oth¬ 
er  side,  that  slavery  will  not  present  a  bad  or  dan¬ 
gerous  example  here,  for  the  sentiment  of  our  state 
is  so  strongly  against  it,  that  we  have  nothing  to 
apprehend  from  its  influence.  It  is  a  sufficient  an¬ 
swer  to  this,  that  whatever  is  in  itself  bad  and  capa¬ 
ble  of  imitation,  must  be,  if  tolerated  among  us,  of 
bad  example.  It  is  no  satisfactory  reply  to  say,  that 
the  constitution  forbids  the  holding  of  slaves  in  this 
stale.  The  constitution  is  only  the  expression  of 
public  sentiment,  and  may  be  altered,  if  that  senti¬ 
ment  could  change.  Jefferson  has  particularly  no¬ 
ticed  the  pernicious  influence  of  the  example  pre¬ 
sented  by  slavery — 

‘  The  whole  commerce  between  master  and  slave 
is  a  perpetual  exercise  of  the  most  boisterous  pas¬ 
sions,  the  most  unremitting  despotism  on  one  part 

(1)  Bl.  Com.  425  in  Not.  Ed.  1793. 

(2)  2  B.  &  Cresw.  448. 

(3)  4  Mass.  Rep.  127. 


and  degrading  submission  on  the  other.  Our  chil¬ 
dren  see  this,  and  learn  to  imitate  it.  The  parent 
storms,  the  child  looks  on,  catches  the  lineaments  of 
wrath,  puts  on  the  same  airs  in  the  circle  of  smaller 
slaves,  gives  loose  to  the  worst  of  passions,  and  thus 
nursed,  educated,  and  exercised  in  tyranny,  cannot 
but  be  stamped  by  it  with  odious  peculiarities. ’(4) 

If,  then,  the  influence  of  slavery  is  bad,  it  is  not 
enough  to  say  that  that  influence  will  be  small  here. 
I  know  not  that  it  would  be  small  in  fact.  At  the  time 
of  Sommersett's  case, when ,  I  suppose, there  were  not 
one  fourth  as  many  slaves  in  the  British  West  In¬ 
dies,  as  there  now  are  in  the  United  States,  and 
when  the  communication  between  those  isl¬ 
ands  and  Great  Britain  was  ten-fold  more  diffi¬ 
cult  than  it  now  is  between  the  different  pails  of 
this  country,  Lord  Mansfield  said  there  w’ere  15,000 
slaves  living  in  England,  brought  there  by  their 
masters,  on  the  strength  of  an  opinion,  given  a  few 
years  before  by  two  eminent  lawyers,  that  they 
might  be  still  held  in  England,  and  carried  back  as 
slaves. (5)  Here  is  a  somewhat  appalling  statement. 
After  all,  however,  this  is  not  a  question  of  degree, 
but  of  kind.  If  as  a  powerful  example,  it  would  be 
bad,  as  a  weaker  example  it  is  bad  still,  Be  it  great 
or  small,  it  is  a  part  of  our  rights  as  freemen,  to  be 
neither  pained  nor  corrupted  by  the  presence  of  sla¬ 
very. 

I  trust  it  has  been  made  to  appear  that  independ¬ 
ently  of  the  Constitution  of  the  United  States,  sla¬ 
very  is  opposed  to  the  morals  and  policy  of  Massa¬ 
chusetts,  too  diametrically  to  admit  the  exercise  of 
the  comity  claimed.  I  now  hope  to  show,  that  noth¬ 
ing  contained  in  that  instrument  can  affect  the  pre¬ 
sent  question. 

What,  then,  is  the  operation  of  the  constitution  of 
the  U.  S.  on  the  subject  of  slavery  in  Massachu¬ 
setts  ? 

It  has  been  argued,  that,  as  the  constitution  of 
the  United  States  recognizes  slavery — in  acceding  to 
the  constitution,  we  are  estopped  from  denying  its 
morality  or  policy.  Estoppels  are  not  favored  in 
law, — and  the  doctrine  set  up  savors  of  the  most  ul¬ 
tra  school  of  liberal  construction.  How  is  it  that 
the  constitution  recognizes  slavery  ?  In  the  first 
place,  simply  as  a  matter  of  fact;  and,  in  the  next 
place,  by  conferring  certain  rights,  and  prescribing 
certain  duties,  growing  out  of  the  existence  of  sla¬ 
very.  We  have  agreed  to  recognize  slaves  as  a  ba¬ 
sis  for  direct  taxation  and  representation, — and  to 
give  them  up,  when  they  abscond  into  the  free 

(4)  Notes  on  Virginia. 

(5)  The  London  newspapers  of  that  day  were  de¬ 
filed  by  the  notices  of  the  sale  of  negroes;  adver¬ 
tisements  for  runaway  slaves,  &e.  See  Clarkson’s 
history  of  the  abolition  of  the  slave  trade. 


4 


22 


Ellis  Gray  Loring,  Esq.,  for  the  Petitioner. 


states, — and  here  we  stop.  IIow  am  1  to  deduce 
from  tliis,  the  right  claimed  for  the  citizens  of  oth¬ 
er  states,  to  force  their  slaves  upon  us  ?  The  ground 
on  which  the  recognition  of  slavery  was  admitted  by 
Massachusetts  into  the  constitution,  was  no  change 
of  sentiment  on  the  subject  of  slavery.  It  was  a 
compromise,  for  the  sake  of  peace.  It  was  only  a 
recognition  pro  tanto  ;  and  so  far  as  we  have  agreed 
to  recognize  it,  we  do  so, — that  is,  within  certain 
limits,  and  in  a  particular  way.  The  position  that, 
having  recognized  it  to  a  limited  extent,  we  are 
bound  not  to  object  to  its  being  carried  to  a  greater 
extent,  is  net  a  new  one.  It  was  a  leading  argument 
at  the  time  of  the  Missouri  question,  that,  having 
admitted  the  principle  of  slavery  in  the  constitution, 
we  could  not  object  to  its  extension  into  new  states. 
But  this  ground  was  rejected  by  the  north,  and  no 
where  more  decisively  than  in  Massachusetts.  More 
recently,  it  has  been  asserted,  that  the  recognition 
of  slavery  in  the  national  compact  renders  it  unlaw¬ 
ful  for  individuals,  in  the  free  states,  to  discuss  its 
evils  or  their  remedy.  These  loose  suggestions  ar¬ 
gue  a  very  superficial  acquaintance  with  the  consti¬ 
tution.  I  will  not  urge  again,  the  general  consid¬ 
erations  by  which  I  have  shewn  that  the  terms  of 
the  constitution  are  the  measure  of  the  surrender 
made  by  the  parties  to  it,  of  their  peculiar  princi¬ 
ples  or  rights.  It  is  sufficient  to  say,  that  an  amend¬ 
ment  to  the  constitution  inserted  with  jealous  care, 
provides  that  ‘  The  powers  not  delegated  to  the  U. 
States  by  the  constitution,  nor  prohibited  by  it  to 
the  states,  are  reserved  to  the  states  respectively, 
©r  to  the  people.’ 

To  apply  this  rule  to  the  case  before  us.  Inde¬ 
pendently  of  the  case  of  fugitive  slaves,  no  power 
is  delegated  to  the  United  States,  by  the  constitution, 
to  regulate  the  relation  of  master  and  slave  within 
the  several  states, — nor  is  the  power  to  regulate  or 
annul  that  relation  prohibited  by  the  constitution  to 
the  states  respectively.  Each  state  is  sovereign  in 
regard  to  it,  and  Massachusetts  only  owes  to  Lou¬ 
isiana  (it  being  a  case  not  provided  for  in  the  con¬ 
stitution,)  the  same  consideration  that  would  be  due 
to  Spain,  or  any  other  friendly  power. 

The  second  section  of  the  fourth  article  of  the 
constitution  of  the  United  States,  which  enacts  that 
x  no  person  held  to  labor  or  service,  in  one  state, 
under  the  laws  thereof,  escaping  into  another,  shall, 
in  consequence  of  any  law  therein,  be  discharged 
from  such  service  or  labor  ;  but  shall  be  delivered 
up,  on  claim  of  the  party  to  whom  such  service  or 
labor  may  be  due,’  has  received  a  judicial  construc¬ 
tion  in  two  cases  decided  in  Pennsylvania.  In  But¬ 
ler  vs.  Hopper  (1)  Judge  Washington  decided,  that 


this  clause  did  not  extend  to  the  case  of  a  slave  vol¬ 
untarily  carried  by  his  master  into  another  state, 
and  there  leaving  him,  under  the  protection  of  some 
law  declaring  him  free.  The  same  point — namely, 
that  the  constitutional  provision,  respecting  persons 
escaping  from  labor,  is  to  be  strictly  construed,  was 
again  decided  by  the  same  Judge,  Ex  parte  Sim¬ 
mons. (2) 

A  third  case  may  be  adduced,  decided  Feb.  20, 
183G,  by  Judge  Barnes,  more  recently  President  of 
the  District  Court  for  the  city  and  county  of  Phila¬ 
delphia,  upon  the  following  facts. (3)  Marshall 
Green,  a  black  man,  was  claimed  as  a  slave,  by  Pe¬ 
ter  Buchell  of  Maryland.  About  four  years  previ¬ 
ous  to  the  hearing  before  Judge  Barnes,  Marshall 
absconded  from  his  master’s  residence,  and  contin¬ 
ued  absent  till  August,  1835,  when  he  was  arrested 
by  Buchell,  his  master,  and  carried  back  to  Mary¬ 
land.  At  the  time  when  he  absconded,  he  took 
with  him  his  three  children,  who  were  alleged  also 
to  be  slaves.  After  Marshall’s  return  to  Maryland, 
Buchell,  in  order  to  obtain  posses-ion  of  these  chil¬ 
dren,  gave  him  permission,  and  for  that  purpose 
furnished  him  with  a  pass,  to  come  into  Pennsyl¬ 
vania,  upon  his  express  promise,  that  he  would, 
within  a  certain  period,  if  successful  in  the  pursuit 
of  his  children,  bring  them  to  his  master, — if  not 
successful,  he  would  return  himself.  The  time  of 
absence  granted  by  the  master,  having  expired, 
Marshall  was  again  arrested.  Judge  Barnes  refus¬ 
ed  the  certificate  applied  for  by  the  master,  on  the 
ground  that  the  act  of  Congress,  founded  cn  the 
constitutional  provision,  did  not  embrace  a  case  like 
that  before  him — inasmuch  as  Marshall  was  not  a 
fugitive  slave,  had  not  escaped  from  one  state  into 
another, — but  by  his  master's  consent  had  left  Mary¬ 
land,  and  come  into  Pennsylvania. 

If,  then,  this  provision  of  the  constitution  cannot 
be  made  to  cover  the  present  elaim,  it  has  necessa¬ 
rily  a  strong  bearing  against  it.  It  is  a  sound  max¬ 
im  of  construction,  that  Expressum  facit  ccssare 
taciturn.  In  Lunsford  v.  Coquillon.(4)  the  Supreme 
Court  of  Louisiana  say, — 

1  The  right  of  a  state  to  pass  laws,  dissolving  the 
relation  of  master  and  servant,  is  recognized  in  the 
constitution  of  the  U.  S.  by  a  very  forcible  impli¬ 
cation.  This  instrument  declares,  that  no  person 
held  to  service  or  labor  in  one  state,  under  the  laws 
thereof,  escaping  into  another,  shall  in  consequence 
of  any  law  or  regulation  thereof,  be  discharged  from 
such  service  or  labor.  Hence  the  implication  is 
strong,  that  such  persons  who  do  not  escape,  but 
whose  owners  voluntarily  bring,  may  be  discharged 
by  the  laws  or  regulations  of  the  state,  in  which 


(2)  4  Wash.  C.  C.  II.  396. 

(3)  Stroud’s  Slave  Laws  1G7. 

(4)  Mart.  Hep.  4G5. 


(I)  1  Wash.  C.  C.  Rep.  501. 


23 


Ellis  Gray  Lor  big ,  Esq.,  for  the  Petitioner . 


they  are  so  brought.  For  if  this  could  not  be,  to 
what  use  would  be  the  prohibition  ?  ’ 

A  similar  remark  may  be  made,  respecting  the 
statutory  provisions  of  the  states,  cited  by  the  op¬ 
posing  counsel.  I  take  as  an  example,  the  statute 
of  New  York.  It  pronounces  all  persons  in  that 
stale  to  be  free,  with  certain  exceptions,  among 
which  is  that  of  slaves  attending  their  masters,  on 
a  visit  of  less  than  six  months.  It  is  obvious  that 
the  framers  of  that  law  supposed  the  special  exemp¬ 
tion  was  necessary,  to  prevent  the  local  law  of  free¬ 
dom  from  entirely  annulling  the  law  of  the  foreign 
domicil. 

No  man  is  more  settled  than  I  am  in  the  convic¬ 
tion,  that  the  court  must  administer  justice  accord¬ 
ing  to  law.  He  the  constitution  what  it  may,  here 
we  are  to  abide  by  it  It  is  indeed  my  opinion,  that 
the  northern  states,  in  their  concessions  to  slavery 
contained  in  that  instrument,  particularly  in  pledg¬ 
ing  themselves  to  active  measures,  for  restoring  run¬ 
away  slaves,  were  guilty  of  a  compromise  of  long 
avowed  principles, (1)  a  barter  of  conscience,  a  vic- 
lation  of  the  express  law  oj  God,  which  commands, 

.  '  ‘  Thou  shalt  not  del  iver  unto  his  master,  the  servant 
which  is  escaped  from  his  master  unto  thee.  He 
shall  dwell  with  thee;  where  it  like tli  him  best.  Thou 
shalt  not  oppress  him. ’(2)  Still,  were  this  like  the  case 
of  a  fugitive  slave,  where,  as  I  conceive,  the  laws  of 
God  and  the  laws  of  man  conflict,  I  should  not  stand 
here  before  a  legal  tribunal,  and  urge  the  court  to  dis¬ 
regard  or  annul  the  human  law,  I  only  claim, that  when, 
as  in  the  present  case,  we  get  beyond  the  sphere  of  the 
human  enactment, the  court  are  free  there  tolook  to  the 
w  ill  of  God  (l  the  perfect  law  of  liberty  ’)  alone.  In  this 
sense,  and  to  this  extent,  ‘  chiistianity  is  part  of  the 
common  law,’ — But  my  learned  brother  is  not  satisfi¬ 
ed  with  having  the  human  law  paramount,  within  its 
own  limits.  He  claims  that  whatever  be  the  view 
which  good  morals  or  religion  take  of  slavery,  the 
laws  of  man  having  introduced  it  to  a  certain  extent, 
there  would  be  great  inconsistency  in  stopping  there  ; 
or  in  even  professing  any  more  conscientious  scruples 
on  the  subject.  He  argues  that,  as  one  of  this  court 
might  be  called  on  to  give  a  certificate  for  the  remov¬ 
al  of  a  fugitive  slave  to-morrow,  there  would  be  gross 
inconsistency  in  deciding  that  the  voluntary  introduc¬ 
tion  of  slavery  into  Massachusetts  would  be  immoral 
and  impolitic  to-day. 

I  can  scarcely  believe,  that  the  learned  counsel 
can  seriously  argue  that  the  State  of  Massachusetts, 
having  become  a  party  to  a  compact,  under  which 
certain  rights  are  secured  to  slave  masters,  is  to 

(1)  ‘Many  sacrifices  of  opinion  and  feeling.’ — 
Story,  3  Comm,  on  Const.  677 

(2)  23  Deut.  15,  16. 

3 


be  presumed  to  have  abandoned  her  long  cherished 
views  of  the  character  and  tendency  of  slavery  ;  ot* 
her  policy  of  exeluding  it  from  her  soil.  Nothing  in 
her  history  or  public  acts  gives  the  least  countenance 
to  such  a  theory.  We  all  know,  perfectly  well,  that 
Massachusetts  did  not  agree  to  restore  fugitive  slaves 
because  she  had  changed  her  mind  as  to  slavery,  but 
because  she  feared  anarchy  and  divisions, — and  the 
constitution,  such  as  it  was,  was  the  best  bargain  she 
could  make.  We  do  not  restore  these  unhappy  be¬ 
ings  now,  because  it  is  right  so  to  do,  but  because, 
right  or  wrong,  we  have  agreed  to  it.  Suppose,  then, 
we  admit,  for  a  moment,  the  gentleman’s  charge  of 
inconsistency,  and  what  follows  ? — why,  nothing,  but 
to  be  thankful  that  the  merit  of  inconsistency  is  still 
left  for  us.  To  be  thoroughly  consistent  in  wrong, 
would  be  truly  a  ‘  bad  eminence.’ 

But,  I  have  no  belief  that  the  court  will  admit,  that 
a  decision  in  favor  of  the  petitioner  w  ould  involve 
any  inconsistency  whatever.  I  will  borrow  the  lan¬ 
guage  of  the  learned  counsel  for  the  respondent,  in 
speaking  of  the  ‘  morality  ’  of  slavery,  and  say  of  «  con¬ 
sistency,’  that  it  is  to  be  measured,  in  a  court  of  law, 
by  a  legal  standard  alone.  And  I  shall  now  attempt 
to  show,  that  the  European  law  of  slavery  proceeds 
entirely  on  the  ground,  which  has  been  charged  as 
inconsistent; — and  moreover,  that  courts  of  the  high¬ 
est  authoiity  in  the  free  States  of  our  country,  and 
Jurists  of  the  highest  eminence,  have  not  felt  them¬ 
selves  bound,  by  the  obligations  contained  in  the  con¬ 
stitution,  from  deciding  against  the  comity,  which 
seeks  to  introduce  slavery  into  those  states. 

In  the  case  of  Sommersett,  the  leading  English 
case,  it  was  decided  that  ‘slavery  is  of  such  a  nature 
that  it  is  incapable  of  being  introduced  on  any  reasons 
moral  or  political,— but  only  by  positive  law.  It  is  so 
odious  that  nothing  can  be  suffered  to  support  it  but 
positive  law. ’(3)  It  is  thus  conceded  by  Lord  Mans¬ 
field,  that  the  same  institution  which  was  then  sus¬ 
tained,  and  even  encouraged,  by  the  British  Govern¬ 
ment  in  the  colonies,  where  it  was  supported  by  the 
customary  law,  might  he  declared  by  the  courts  to 
be  too  odious  and  immoral  to  be  allowed  a  footing  on 
English  ground.  A  necessary  position  of  Mr.  Har¬ 
grave,  in  his  masterly  argument  for  the  slave  Som- 
mersetf,  is  that  slavery  is,  in  the  contemplation  of  law, 
a  purely  local  institution  ;  and  that,  as  such,  its  being 
tolerated  bylaw,  in  one  part  of  the  British  dominions, 
did  not  prevent  the  court  from  deciding  on  its  immor¬ 
ality  and  impolicy  at  home. — -And  this  view  was  cer¬ 
tainly  confirmed  by  the  court.  I  have  already  said, 
that  this  has  been  long  a  rule  of  law  of  the  principal 
states  in  Europe.  It  may  be  stated  as  I  have  done, 

(3)  20  Howell  State  Trials,  82.  ;  .  _  _ 


24 


Ellis  Gray  Loring ,  Esq.,  fur  the  Petitioner. 


that  slavery  is  a  merely  local  institution — or,  more 
plainly,  that  the  law  of  all  Europe  is,  that  slaves  in 
the  colonies  are  property — in  the  parent  country  they 
are  men, — and  all  the  legislation  and  judicial  decis¬ 
ions  of  those  countries,  on  the  subject  of  slaves,  pro¬ 
ceed  on  that  ground.  On  this  account.  Lord  Mans¬ 
field  says,(l)  there  is  no  difficulty  in  giving  effect  in 
England,  to  a  contract  for  the  sale  of  a  slave  in  the 
W.  I _ but,  where  the  person  of  the  slave  is  in  Eng¬ 

land,  and  becomes  the  subject  in  controversy,  that  is 
'a  widely  different  case.  If  this  distinction  be  clearly 
kept  in  view,  coupled  with  the  prineiple,  that  no  civ¬ 
ilized  nation  will  sanction  an  aggression  upon  the  le¬ 
gal  rights  of  the  citizens  of  other  friendly  States,  with¬ 
in  their  own  limits,  we  shall  find  no  great  difficulty 
in  reconciling  the  admiralty  and  other  cases,  cited  by 
the  respondent’s  counsel,  with  the  point  for  which 
we  contend. 

The  case  of  Forbes  vs.  Cochrane,  before  cited,  is 
very  full  to  this  point.  Holroyd,  J.  remarks,  ‘  accord¬ 
ing  to  the  principles  of  the  English  law,  such  a  tight 
cannot  be  considered  as  warranted,  by  the  general 
law  of  nature.  I  do  not  mean  to  say,  that  particular 
circumstances  may  not  introduce  a  legal  relation  to 
that  extent;  but  assuming  that  there  may  be  such  a 
relation,  it  can  only  have  a  local  existence,  where  it 
is  tolerated  by  the  particular  law  of  the  place.  The 
law  ol  slavery  is  a  law  in  invitum  ;  and  when  a  par¬ 
ty  gets  out  ol  the  territory  where  it  prevails,  and  out 
of  the  pow  er  of  his  master,  and  gets  under  the  pro¬ 
tection  of  another  power,  without  any  wrongful  act 
done  by  the  party  giving  that  protection,  the  right  of 
the  master,  which  is  founded  on  the  municipal  law 
of  the  particular  place  only,  does  not  continue.’ 

Best,  J.  said,  ‘  slavery  is  a  local  law,  and  therefore 
if  a  man  wishes  to  preserve  his  slaves,  let  him  attach 
them  to  him  by  affection,  or  make  fast  the  bars  of  their 
prison,  or  rivet  well  their  chains,  for  the  instant  they 
get  beyond  the  limits,  where  slavery  is  recognized 
by  the  local  law,  they  have  broken  their  chains,  they 
have  escaped  from  their  prison,  and  are  free.  The 
plaintiff  does  not  found  his  action  upon  any  violation 
of  the  English  laws,  but  he  relies  upon  the  comity  of 
nations.  1  am  of  opinion,  however,  that  he  cannot 
maintain  any  action  in  this  country,  by  the  comity  of 
nations.  Although  the  English  law  has  recognized 
slavery,  it  has  done  so  within  certain  limits  only. — 
Whatever  service  he  (the  slave)  owed  by  the  local 
law,  is  got  rid  of,  the  moment  he  got  out  of  the  local 
limits.’ 

In  the  case  of  Knight  v.  Wedderburn, (2)  tried  in 
Scotland,  before  the  Court  of  Session,  Jan.  15,  1778, 
it  was  argued  for  Mr.  Wcddcrburn,  in  support  of  his 


claim  tothe  services  of  Knight,  a  Jamaica  slave,  whom 
he  had  brought  with  him  to  Scotland,  that  Knight  was 
still  a  slave.  ‘  A  right  of  property,’  said  the  counsel, 
‘will  be  sustained  in  every  country,  where  the  subject 
of  it  may  come.  The  Status  of  persons  attend  them 
wherever  they  go  The  law  of  the  colonies  is  not  to 
be  considered  unjust,  in  authorizing  this  condition  of 
slavery.  The  statutes  which  encourage  the  African 
trade,  show  that  the  Legislature  do  not  look  on  it  in 
that  light.' 

•  The  Court  were  of  opinion,  that  the  dominion  as¬ 
sumed  over  this  negro,  under  the  law  of  Jamaica,  be¬ 
ing  unjust,  could  not  be  supported  in  this  country,  to 
any  extent.’ 

We  have  seen  in  the  case  of  Forbes  v.  Cochrane, 
that  the  British  courts  will  not  respect  the  claims  of 
Spanish  slave-masters,  when  their  slaves  get  out  of 
Spanish  territory.  And  yet  Great  Britain  has  recog¬ 
nized,  in  a  great  number  of  treaties  and  other  public 
acts,  the  right  of  Spain  to  hold  slaves.  In  the  treaty 
of  Utrecht,  in  1713,  there  is  an  express  stipulation  that 
4S00  slaves  should  be  annually  supplied  to  the  Span¬ 
iards.  But  not  to  rely  on  this,  very  recent  conven¬ 
tions  recognize  the  right  of  Spain  to  prosecute  the 
slave  trade,  south  of  the  line.  Yet  Great  Britain  finds 
no  inconsistency  between  these  acts,  and  her  laws 
denominating  the  slave  trade  a  crying  enormity.  I 
do  not  mean  to  deny,  that  the  policy  of  foreign  gov¬ 
ernments  and  of  our  own,  does  in  my  own  private 
judgment,  involve  inconsistency. 

‘  Earth  is  sick, 

And  Heaven  is  weary  of  the  hollow  words 

Which  kings  and  statesmen  utter,  when  they  talk 

Of  justice.’ 

The  prohibition  of  the  foreign  slave  trade  by  our 
own  government,  at  the  same  time  that  w*  tolerate 
the  domestic  slave  trade,  is  grossly  inconsistent.  Still 
in  legal  contemplation,  it  is  otherwise, — and  this  is 
sufficient  for  our  present  purpose.  The  Stales  of  Eu¬ 
rope  have  seen  the  evils  of  slavery  too  clearly,  to  al¬ 
low  it  a  foothold  at  home,  while  mistaken  views  ot 
colonial  policy  have  caused  them  to  vie  with  each 
other,  in  encouraging  it  abroac^c 

I  now  refer  to  a  few  American  cases,  to  show  that 
we  have  adopted  in  this  country  a  policy  analogous  to 
that  of  England, — by  recognizing  slavery  as  a  local 
or  partially  acknowledged  institution  only.  Our  law 
is  thatslaves  arc  property  within  ceitain  limits,  name¬ 
ly,  (repi  osculation  cxccptcd)  while  they  remain  under 
the  local  law  of  slaver)’,  or  when  they  appear  else¬ 
where  in  the  character  of  fugitives.  They  are,  on  (he 
other  hand,  men  where  representation  in  Congress  is 
concerned,  or  whenever  they  come  rightfully  within 
tlm  limits  of  the  local  law  of  freedom. 

I  refer  the  court  again  to  the  case  Ex  parte  Sim¬ 
mons,  decided  by  Judge  Washington,  himself  a  slave- 


(1)  20  Howell  St.  Tr.  79. 

(2)  20  How.  St.  Tr.  3,  note. 


25 


Ellis  Gray  Loving,  Esq. 

holder.  In  that  case,  the  claimant  of  the  slave,  who 
had  been  a  resident  of  South  Carolina,  and  still  had  a 
house  and  plantation  there,  came  to  Philadelphia  with 
his  slave,  hired  a  house  and  occupied  it  tor  about  ten 
months.  The  law  of  Pennsylvania  authorizes  sojourn¬ 
ers,  who  shall  not  remain  within  that  State  more  than 
six -months,  to  retain  control  over  the  slaves  whom 
they  bring  with  them.  It  was  determined  by  the 
Judge  that,  as  the  claimant  did  not  bring  himself  with¬ 
in  the  exception  of  the  statute,  the  slave  was  free.  I 
submit  to  the  Court,  that  in  this  commonwealth,  a 
slave  master  can  have  no  greater  rights  on  his  first 
arrival  here  with  his  slave,  than  he  has  in  Pennsyl¬ 
vania  after  remaining  there  six  months.  The  call  on 
us  for  comity,  in  the  case  now  before  the  court,  is  not 
more  imperative  than  it  was  in  Pennsylvania  in  the 
cases  cited.  In  both  cases  alike,  the  claim  is  that  the 
provisions  of  the  positive  law  of  the  country  should  be 
enlarged,  out  of  comity  to  a  foreigner.  The  Pennsyl¬ 
vania  case  goes  clearly  on  the  ground  that  the  provi¬ 
sions  of  the  constitution  of  the  U.  S.  create  no  obliga¬ 
tions  on  the  States,  except  by  their  express  terms, 
and  according  to  their  plain  and  direct  import. 

In  Commonwealth  vs.  Holloway  (1)  it  was  held 
thst  the  law  of  a  slave  state  that  ‘  a  child  follows  the 
condition  of  its  mother,’  partus  sequilur  ventrem, 
could  not  be  adopted  by  comity,  in  Pennsylvania,  in 
the  case  of  the  child  of  a  slave  who  had  absconded 
from  another  state,  before  she  became  pregnant.  I 
refer  also  to  Butler  v.  Hopper,  before  cited. 

In  the  case  of  Saul  vs.  His  Creditors,  (2)  the  Su¬ 
preme  Court  of  Louisiana  uses  the  following  lan¬ 
guage  : 

‘  Take  another  case.  By  the  laws  of  this  country, 
Slavery  is  permitted,  and  the  rights  of  the  master  can 
be  enforced.  Suppose  the  individual  subject  to  it,  is 
carried  to  England  or  Massachusetts;  would  their 
courts  sustain  the  argument,  that  his  state  or  condi¬ 
tion  was  fixed  by  the  laws  of  his  domicil  of  origin  ? 
We  know  they  would,  not.' 

The  case  of  Francisco  (3)  came  before  the  present 
Chief  Justice  of  this  Court,  on  habeas  corpus.  In 
that  case,  Mrs.  Howard,  a  resident  in  the  Island  of 
Cuba,  and  the  supposed  owner  of  the  boy  Francisco, 
by  her  return  to  the  writ,  expressly  disclaimed  hold¬ 
ing  him  as  a  slave.  The  boy,  on  being  examinod  by 
the  Judge  privately,  expressed  his  desire  to  go  with 
Mrs.  Howard.  The  Chief  Justice  decided  that  the 
boy  might  do  as  he  chose,— -saying  in  his  opinion,  ‘  If 
Mrs.  Howard,  in  her  return  to  the  writ,  had  claimed 
the  boy  as  a  slave,  I  should  have  ordered  him  to  be 
discharged  from  her  custody.  The  boy,  by  the  law 
of  Massachusetts,  is  in  fact,  free.’ 


,  for  (he  Petitioner. 

The  author  of  ‘  The  Conflict  of  Laws  ’  touches  on 
this  very  point.  Referring  to  Sommersett’s  case,  he 
says,  ‘  As  soon  as  a  slave  lands  in  England,  he  be¬ 
comes,  ipso  facto,  a  freeman,  and  discharged  from  the  * 
state  of  servitude.  Independent  of  the  provisions  of 
the  Constitution  of  the  United  States,  for  the  protec¬ 
tion  of  the  rights  of  masters  in  respect  to  domestic 
fugitive  slaves,  there  is  no  doubt  that  the  same  prin¬ 
ciple  pervades  the  common  law  of  the  non-slavehold¬ 
ing  States  in  America.’  (-1) 

A  case  decided  in  Indiana,  by  Judge  Morris,  and 
reported  in  the  Jurist,  has  been  cited  by  the  counsel 
for  the  respondent,  as  having  a  bearing  adverse  to  the 
petitioner’s  claim.  The  decisions  in  the  Indiana 
Courts  are  rarely  referred  to  here.  And  I  may  add, 
without  intentional  disrespect,  that  I  have  been  una¬ 
ble  to  ascertain  who  Judge  Morris  is.  The  case  there 
was  decided,  as  appears,  in  favor  of  the  freedom  of 
the  slaves.  The  remarks  of  the  Judge,  relied  on  by 
my  learned  brother,  were  not  called  for  by  the  cir¬ 
cumstances  of  the  case,  and  may  be  considered  extra¬ 
judicial.  The  opinion  appears  to  involve  evident  mis¬ 
takes  of  law.  For  example,  the  Judge  declares,  that 
where  a  citizen  of  a  slave  State  is  travelling  upon 
business  or  pleasure  attended  by  his  slave,  ‘  an  escape 
from  the  attendance  upon  the  person  of  his  master, 
while  on  a  journey  through  a  free  State,  should  be 
considered  as  an  escape  from  the  State,  where  the 
master  had  a  right  of  citizenship,  and  by  the  laws  of 
which  the  service  of  the  slave  was  due.’  I  need  not 
say  how  entirely  this  mode  of  enlarging  by  construc¬ 
tion  the  scope  of  the  constitutional  provisions  respect¬ 
ing  fugitives,  militates  with  settled  law.  Indeed  it 
does  not  seem  very  consistent  with  other  portions  of 
the  Judge’s  own  reasoning. 

This  loose  way  of  construing  the  Constitution  has 
not  met  much  favor  in  the  Northern  States.  The 
constitution  provides,  that  ‘  a  person  charged  in  any 
State  with  treason,  felony,  or  other  crime,  who  shall 
flee  from  justice,  and  be  found  in  another  State,  shall, 
on  demand  of  the  executive  authority  of  the  State 
from  tchich  lie  fled,  be  delivered  up,  to  be  removed  to 
the  State  having  jurisdiction  of  the  crime.’  A  grand 
jury  in  Alabama,  about  a  year  since,  indicted  R.  G. 
Williams,  a  citizen  of  New- York,  for  having  publish¬ 
ed,  in  a  newspaper  called  ‘  the  Emancipator,’  the  fol¬ 
lowing  ‘insurrectionary’  words:  ‘God  commands, 
and  all  nature  cries  out,  that  man  should  not  be  held 
as  property.  The  system  of  making  men  property, 
has  plunged  2,250,000  of  our  fellow  countrymen  into 
the  deepest  physical  and  moral  degradation,  and  they 

(4)  Corifl.  Laws  92.  Observe  that  the  present  tense, 
pervades,  is  used.  I  understand  the  author  to  assert 
that,  with  the  single  exception  of  the  case  of  fugi¬ 
tives,  the  English  rule  is  now  actually  operating  here. 


(1)  4  Serg.  &  R.  305. 

(2)  17  Mart.  Rep.  598. 

(3)  9  Amer.  Jurist  490. 


26 


Ellis  Gray  Loving,  Esq.,  for  the  Petitioner. 


are  every  moment  sinking  deeper.’  The  Executive 
of  Alabama  demanded  the  delivery  of  Williams,  to 
answer  to  this  charge  in  Alabama  ; — but  it  being  no¬ 
torious  that  he  had  never  been  in  that  State,  and  could 
not  therefore  have  ‘  fled  ’  from  it,  the  Governor  of 
New  York,  after  consulting  with  his  law  advisers, 
very  properly  refused  the  application.  The  Gover¬ 
nor’s  letter  maintains  very  ably,  that  the  provision 
of  the  constitution  is  to  be  construed  strictly. 

The  claim  set  up  by  the  slave  master  in  the  Indi¬ 
ana  case,  is  readily  distinguished  from  the  present. 
The  master  only  claimed  there  the  right  to  pass  with 
his  slaves,  from  one  slave  State  to  another,  thiough  a 
free  State a  mere  transit,  not,  as  here,  a  needless 
residence.  It  is  possible  that  comity  may  depend  in 
some  degree  on  locality.  The  geographical  position 
of  Indiana,  lying  between  Kentucky  and  Missouri, 
may  be  thought  to  present  some  apparent  necessity 
for  relaxing  in  certain  cases,  the  domestic  rule  against 
slavery.  No  such  necessity  exists  here,  and  consid¬ 
erations  of  convenience,  as  well  as  of  law,  urge  us  to 
adhere  to  our  ancient  policy. 

The  comity  asked  in  the  present  case  is  not  toward 
a  mere  transitus,  but  is  to  be  extended  to -a  tempora¬ 
ry  residence.  Now  these  are  widely  different  ques¬ 
tions.  A  transit  is  a  thing  well  understood  and  ea¬ 
sily  determined.  What  is  temporary  residence,  is  a 
far  more  difficult  enquiry.  The  doctrine  of'  domicil ;’ 
questions  of  the  quo  animo,  or  intention,  these  con¬ 
duct  to  dubious  and  intricate  ground.  How  long  may 
the  temporary  residence  continue  ?  Recollect  we 
have  no  legislative  limitation,  as  in  New  York  and 
Pennsylvania.  Why  may  not  citizens  of  the  slave 
States  remain  here  with  their  slaves  ten  years  as  well 
as  ten  months,  if  the  animus  revertendi  be  preserv¬ 
ed  ?  What  security  have  we  that  the  fields  of  Mas¬ 
sachusetts  may  not  be  tilled  by  slaves  ? 

It  is  stated  in  Sommersett’s  case,  that  there  were 
then  fifteen  thousand  slaves  in  England.  Lord  Mans¬ 
field  estimates  the  apprehended  loss  to  their  masters, 
at  700,000/.  sterling,  and  expresses  great  solicitude  as 
to  the  consequences  of  ‘  setting  them  loose.’  There 
are  not  probably  twenty  persons  held  as  slaves  in 
Massachusetts,  to  be  affected  by  your  decision. 

If  slavery  is  introduced  at  all,  in  the  case  ofsojourn- 
ers,  why  should  we  not  introduce  it,  as  it  exists  in 
the  Southern  States  ?  The  learned  counsel  has  in¬ 
deed  most  prudently  restricted  the  master’s  claim. 
But  why  should  he  do  so  ?  Has  he  not  said  that  the 
personal  capacity  or  incapacity  of  foreigners  as  be¬ 
tween  themselves  attends  them  here, —  and  sticks  like 
the  shadow — ‘  sicut  umbra  sequitur’  ?  Besides,  in 
avowing  that  he  claims  to  carry  this  child  back  into 
slavery,  he  admits  the  intention  of  doing  her  a  far 
greater  injury  than  mere  beating.  If  she  is  to  be 


robbed  of  her  liberty,  all  other  losses  are  in  compari¬ 
son,  but  trifling.  And  such  is  the  view  taken  by  our 
law.  Kidnapping,  or  imprisoning  with  intent  to  kid¬ 
nap,  is  one  of  the  highest  crimes.  The  greatest  cru¬ 
elty  of  all  is  contemplated  here,  namely,  the  removal 
of  the  child  to  a  place  where  slavery,  with  its  usual 
features,  will  again  attach  upon  her. 

The  force  of  Lord  Mansfield’s  remark  cited  by  the 
respondent’s  counsel,  is  certainly  unimpaired  by  the 
criticism  we  have  listened  to.  ‘  The  difficulty  of  adopt¬ 
ing  the  relation,  without  adopting  it  in  all  its  conse¬ 
quences,  is  indeed  extreme.’  (1)  The  learned  coun¬ 
sel  has  limited  the  slave-master’s  claim  to  the  utmost, 
— yet  let  us  see  what  it  still  includes.  It  must  in¬ 
clude  the  right  absolutely  to  direct  the  slave’s  locomo¬ 
tion, — here  is  one  incident  of  slavery  ;  to  confine  his 
person, — there  is  another  ;  to  exact  his  labor  without 
wages,  (for  the  case  must  find  that  he  comes  as  ‘  a  per¬ 
sonal  attendant,’) — this  is  a  third  ;  to  compel  submis¬ 
sion  here,  by  any  degree  of  personal  violence  that 
may  be  found  necessary,  and  to  force  him  out  of  Mas¬ 
sachusetts,  if  persuasion  should  fail,  by  the  cogent  aid 
of  the  whip  or  the  fetter.  Are  not  these  the  hateful 
features  of  slavery  ?  If  the  slave  should  marry  while 
here,  he  must,  of  course,  be  separated  from  his  wife. 
Here  is  the  old,  familiar  process  of  the  slave-trailer. 
No, — all  the  learned  counsel’s  ingenuity  could  not 
shew  an  English  or  a  Massachusetts  Court,  how  to 
adopt  the  relation  without  adopting  its  most  abhorrent 
consequences.  And  the  reason  of  this  is  obvious. — 
Slavery  is  an  abuse.  It  is  not  a  thing  to  be  reformed 
or  regulated.  Take  away  its  incidents  of  oppression 
and  baseness,  and  it  is  all  gone.  So  far  as  it  exists  at 
all,  it  exists  for  evil.  We  have  been. told  that  no  prac¬ 
tical  evil  is  found  to  occur  in  New  York  or  Pennsyl¬ 
vania,  from  allowing  a  temporary  existence  to  slavery 
in  the  case  of  sojourners.  Having  no  evidence  be¬ 
fore  us  on  this  point,  we  can  only  form  an  a  priori 
judgment.  I  do  not  doubt  that  great,  that  irreparable 
evil  occurs  wherever  slavery  is  tolerated,  be  it  for  a 
century  or  for  a  day, — and  I  conceive  this  to  be  the 
doctrine  of  Massachusetts.  We  hear  no  complaints, 
it  is  said,  from  those  States.  True;  neither  do  we 
hear  any  complaints  against  slavery,  from  Georgia  or 
Louisiana.  Evil  may  be  their  good.  Supposed  pecu¬ 
niary  advantages  may  with  them  outweigh  moral 
ones.  I  judge  them  not.  It  is  enough  to  say  that,  as 
a  sovereign  State,  Massachusetts  does  not  borrow  her 
views  of  slavery  from  States  that  may  deem  it  right, 
or  pleasant,  or  profitable  to  allow  it. 

The  condition  of  a  Louisiana  slave,  held  as  such  in 
Massachusetts,  is  anomalous.  We  have  no  common 
law  to  regulate  it.  My  learned  brother  has  laid  down 
the  principle,  that  it  will  be  the  province  of  the  judi- 


(1)  20  How.  St.  Tr.  79. 


EUis  Gray  Loving,  Esq.,  for  the  Petitioner. 


27 


cial  tribunals,  and  not  of  the  Legislature,  to  do  this. 
What  then  are  to  he  the  rights  and  duties  of  this  very 
peculiar  member  of  oursociety  ?  Can  he  make  a  con¬ 
tract  : ’  Will  you  give  effect  to  his  marriage  ?  Or  shall 
it  be  void,  and  his  children  illegitimate?  Are  the 
children  of  the  slave  mother  born  here  to  be  also 
slaves  ?  Or  will  their  father,  if  he  should  be  a  free 
citizen  of  Massachusetts,  be  entitled  to  his  own  chil¬ 
dren  ?  If  the  slave  see  a  crime  committed  by  his 
master,  shall  he  be  admitted  as  a  witness?  Alas  (or 
the  slave,  if  he  testify  against  his  master  !  The  ex¬ 
clusion  of  slave  testimony  is  an  indispensable  part  ot 
the  institution  of  slavery.  If  a  slave  in  Massachu¬ 
setts  is  slandered,  has  he  a  remedy  ?  Is  his  character 
his  own  ?  If  he  is  assaulted  by  a  stranger,  has  he  his 
action  as  a  person,  or  is  it  with  the  master,  as  for  an 
injury  to  property  ?  Shall  there  be  any  protection 
for  the  slave  against  his  master  ?  May  the  masterbe 
bound  to  keep  the  peace  towards  him  ?  Probably  not  ; 
for  in  the  case  of  an  adult,  the  utmost  violence  might 
be  necessary  to  compel  submission.  There  can  be  no 
divorce  between  such  parties,  for  cruelty  ; — no  cancel¬ 
ation  of  indentures,  for  abuse  of  authority.  A  slave 
has  no  civil  rights.  Even  to  maim  or  murder  him,  is 
only  an  offence  against  Government:  and  is  punished 
on  the  same  principle  that  we  forbid  cruelty  to  brutes, 
— not  for  their  sakes,  but  for  our  own.  If  the  slave 
refuse  to  leave  the  State,  how  shall  he  be  compelled  ? 
Will  you  justify  an  assault  and  battery  upon  him  ? — 
Suppose  he  kill  his  master  in  self-defence  ;  is  his 
crime  murder  ?  How  far  will  this  Court  go,  in  giving 
validity  to  contracts  for  the  hiring  or  sale  of  slaves 
here  ?  If  one  stranger  sells  to  another  the  slave  he 
has  brought  with  him,  and  does  not  deliver  him,  will 
you  sustain  trover  for  a  human  being  ?  Or,  sitting  as 
a  Court  of  Equity,  will  you  enforce  specific  perform¬ 
ance  of  a  contract  for  the  sale  of  a  fellow  creature, 
thus  making  the  Supreme  Court  an  instrument  in  the 
domestic  slave-trade  ? 

These  consequences  seem  indeed  revolting,  but 
they  are  in  character  with  the  system  to  which  they 
belong. 

I  have  thus  endeavored  to  show  that  the  extension 
of  slavery  here  is  unlawful  and  inexpedient.  It  is 


cause  for  the  sincerest  gratification,  to  reflect  that 
this  question,  important  to  our  whole  country,  is  to  be 
left  in  the  hands  of  the  judiciary  of  Massachusetts. 
The  eloquent  encomium  of  Sir  William  Best,  on  the 
Courts  of  his  own  country,  will  not  be  thought  inap¬ 
plicable  here,  by  the  friends  of  freedom,  looking,  at 
they  will,  with  anxious  hope,  to  the  decision  of  thil 
tribunal. 

‘  It  is  matter  of  pride,’  says  that  eminent  judge, 
‘  for  me  to  recollect,  that  whilst  economists  and  politi¬ 
cians  were  recommending  to  the  Legislature  the  pro¬ 
tection  of  this  traffic,  and  senators  were  framing  law# 
for  its  promotion,  and  declaring  it  a  benefit  to  the  coun¬ 
try, — the  judges  of  the  land,  above  the  age  in  whim 
they  lived,  standing  upon  the  high  ground  of  natunl 
right,  and  disdaining  to  bend  to  the  lower  doctrine  f 
expediency,  declared  that  Slavery  was  inconsistet 
with  the  genius  of  the  English  Constitution,  and  tht 
human  beings  could  not  be  tbe  subject  matter  of  pro- 
erty.  As  a  lawyer,  I  speak  of  that  early  determinl- 
tion,  when  a  different  doctrine  was  prevailing  in  th 
Senate,  with  a  considerable  degree  of  profession} 
pride.’  (1) 

The  generous  boast  of  the  English  poet  haunts  tfe 
memory  of  every  lover  of  liberty  : 

‘  Slaves  cannot  breathe  in  England  : — if  their  lungs 
Receive  our  air,  that  moment  they  are  free. 

They  touch  our  country,  and  their  shackles  fall — 
That’s  noble,  and  bespeaks  a  nation  proud 
And  jealous  of  the  blessing. —  ’ 

This  exalted  pride  cannot  be  fully  ours.  We  havi 
sold  it  for  a  price.  The  fugitive  from  slavery  i; 
hunted  like  a  felon,  through  this  favored  State.  Lei 
us  stop  there.  Let  not  the  accursed  system  thrive 
among  us.  If  we  are  to  be  restrained  from  attacking 
the  giant  trunk, — if  we  have  even  consented  to  let  > 
single  bough  shoot  over  among  us,  to  taint  our  air, — 

I  trust  by  the  blessing  of  Heaven,  we  have  yet 
strength  and  virtue  enough  to  lop  its  luxuriance.— 
God  forbid  that  the  deadly  branches  should  bend  over 
and  strike  root,  to  become  in  their  turn,  a  parent- 
stock,  growing  up  in  the  soil  of  Massachusetts. 


(1)  Forbes  v.  Cochrane.  2  Barn.  &  Cr,  470, 


HON.  RUFUS  CHOATE,  FOR  THE  PETITIONER. 


Hon.  Rufus  Choate  followed,  for  the  Petitioner, 
tnd,  after  remarking  that  his  colleague  had  exhaust- 
rd  the  subject,  and  that  he  intended  to  argue  on 
aiore  narrow  grounds — said  that  the  proposition  con¬ 
tended  for  by  the  counsel  for  the  Respondent  was 
this  :  that  an  inhabitant  of  a  slaveholding  State  may 
irinj  his  slave  into  Massachusetts,  may  restrain 
lim  here  as  a  slave  for  an  indefinite  period— for  any 
priod  that  should  not  absolutely  domiciliate  the 
raster, — and  may  carry  him  by  force  back  again 
iito  slavery,  when  he  returns. 

He  said,  the  extent  to  which  this  principle  might 
Tactically  be  carried,  could  not  fail  to  suggest 
oubts  of  its  soundness.  If  one  planter  may  bring 
ne  slave  into  Massachusetts  and  so  restrain  him, 
very  one  may  bring  any  number  of  his  slaves.  If 
e  may  hold  him,  through  a  summer’s  residence,  as 
;  slave,  he  may  cause  him  to  labor  as  a  slave,  and 
V  all  the  means,  under  all  the  penalties,  by  which 
lave  labor  is  exacted  in  Louisiana.  All  the  ind¬ 
ents  of  slavery  must  accompany  the  relation.  The 
1  w  of  Massachusetts  did  not  recognize  slavery,  and 
tierefore  could  not  regulate  it.  It  must  exist  here 
iist  as  it  exists  in  Louisiana.  It  must  exist  here 
inder  the  law  of  Louisiana,  admitted  by  comity,  and 
.ccordinir  to  that  law.  Such  was  Lord  Mansfield’s 
•pinion,  as  expressed  in  Sommersett’s  case.  The 
consequence  might  be,  that  slavery,  in  its  most  of¬ 
fensive  forms,  might  be  practically  administered  in 
Massachusetts.  It  will  be  proper  to  discuss  the 
question  in  a  historical  and  chronological  order. 

What  was  the  law  of  Massachusetts  upon  the  sub¬ 
ject,  before  the  adoption  of  the  Federal  Constitu¬ 
tion — and  how  far  did  the  adoption  of  that  instru¬ 
ment  change  it  ? 

And  he  would  state  the  first  question,  thus  : — is 
there  any  evidence  or  any  ground  for  the  Court  to 
presume,  that,  when  the  State  of  Massachusetts,  be¬ 
tween  the  years  1770  and  1783,  abolished  the  insti¬ 
tution  of  domestic  servitude,  she  letained  or  adopt¬ 
ed  the  principle,  that  a  foreign  slaveholder  might 
bring  his  slaves  within  her  territory, — restrain  and 
treat  them  as  slaves,  as  long  as  he  pleased  to  stay, 
not  gaining  a  domicil,  —  and  carry  them  away 
again  by  force  into  slavery  ; — and  that,  to  a  habeas 
corpus  sued  by  the  slave  in  her  domestic  courts,  the 
master  might  plead  the  foreign  law  of  slavery  ? 

There  is  no  such  evidence,  and  no  ground  for 
•ueh  presumption.  He  contended,  on  the  contrary, 


that  it  was  entirely  clear,  that,  when  domestic  sla¬ 
very  was  abolished  in  this  State,  it  became  at  once 
part  of  its  jurisprudence  that  no  foreign  law  of 
slavery  thenceforward  could  have  any  effect  or  op¬ 
eration,  or  be  in  any  manner  recognized  against  a 
slave  asserting  his  liberty  in  her  courts,— that,  to  a 
foreign  law  of  slavery,  comity  was  not  to  be  extend¬ 
ed, — that,  in  this  conflict  of  foreign  and  domestic 
laws,  the  former  must  yield. 

He  argued  in  support  of  this  proposition,  on  sev¬ 
eral  grounds.  In  the  first  place,  at  the  time  when 
this  State  abolished  slavery,  it  was  a  well  settled, 
well  known  principle  of  the  law  of  England,  that, 
when  a  nation  ceases  to  tolerate  the  existence  of 
domestic  slavery,  a  foreign  law  of  slavery  cannot  be 
set  up  in  its  courts  against  a  slave  asserting  his  lib¬ 
erty  on  the  domestic  law, — in  other  words,  that  the 
comity  of  nations  does  not  require  or  justify  any 
tolerance  of  a  foreign  law  of  slavery.  This  was  set¬ 
tled  in  Sommersett’s  case.  That  case  decided  two 
points  first,  that  the  institution  of  domestic  sla¬ 
very  did  not  exist  in  England — second,  the  general 
principle,  that  comity  cannot  be  applied  to  a  foreign 
law  of  slavery  coming  in  conflict  with  the  domestic 
law  of  liberty. 

It  is  argued  on  the  part  of  the  respondent  that  no 
principle  concerning  the  comity  of  nations  was  set¬ 
tled  in  Sommerselt’s  case — because  it  is  said  that 
the  phrase,  comity  of  nations,  imports  respect  paid 
to  the  law  of  a  foreign  and  independent  nation, — 
that  the  British  West  Indies  are  not  independent  of 
England.  But  this  is  not  so.  The  comity  of  na¬ 
tions,  as  the  phrase  is  universally  understood  in  the 
books  of  law,  means  a  respect  paid  to  a  foreign  law 
a  lex  loci — whether  of  an  independent  State  or  a 
State  not  independent.  It  does  not  suppose 
a  conflict  of  independent  nations,  but  a  conflict 
of  codes.  It  is  a  respect  paid  not  to  a  nation  because 
she  is  independent  and  may  go  to  war,  but  it  is  paid 
according  to  a  general  principle  of  justice  to  every 
community,  so  considerable  and  so  distinct,  as  to 
have  a  local  judicature  and  local  courts.  Thus  the 
respect  paid  in  England  to  the  local  law  of  Scotland, 
is  paid  by  the  comity  of  nations.  Mr.  Hargrave’s 
argument  and  the  language  of  the  court  plainly 
show  that  the  question  whether  the  lex  loci  of  the 
West  Indies  should  be  allowed  to  be  pleaded  against 
the  domestic  law,  was  discussed  as  a  general  ques¬ 
tion  concerning  the  comity  of  nations, and  that  it  was 


Hon.  Rufus  Choate ,  for  the  Petitioner. 


2S 


decided  against  the  lex  loci — not  because  the  West 
Indies  were  not  independent  of  England,  but  be¬ 
cause  no  foreign  law  of  slavery ,  of  whatever  nation, 
can  be  set  up  against  the  domestic  law  of  freedom. 

This  having  been  the  settled  law  of  England,  at 
the  time  we  abolished  slavery,  it  became  instantly 
part  of  our  law.  The  second  point  adjudged  in 
Sommersett’s  case  was  authority  here.  It  was  de¬ 
cided  before  the  Revolution.  It  settled  and  ascer¬ 
tained  a  great  general  principle  of  the  common  law 
applicable  to  the  Conflict  of  Laws,  and  so  soon  as 
that  principle  became  applicable  to  our  circumstan¬ 
ces — that  is,  so  soon  as  we  abolished  slavery — it  had 
instantly  the  force  of  authority.  Whether  it  had 
the  force  of  authority  or  not,  there  was  the  most  sat¬ 
isfactory  evidence,  that  it  was  adopted  here.  As  a 
general  rule,  whenever  a  principle  is  shewn  to  have 
been  part  of  the  common  law  of  England  at  any  giv¬ 
en  period  before  the  revolution,  it  is  to  be  presum¬ 
ed  to  have  been  part  of  the  law  of  the  Colony  or 
Frovince  of  Massachusetts,  at  the  same  period,  if 
applicable  to  its  circumstances.  If  the  inquiry  is, 
what  was  the  law  of  Massachusetts  in  1774,  we  re¬ 
fer  to  the  decisions  of  Westminster  Hall  of  that  time, 
to  ascertain  it.  When  slavery  was  abolished  here, 
therefore,  is  is  to  be  presumed  that  we  adopted  the 
principle  which  forms  the  second  point  decided  in 
Sommersett’s  case. 

This  presumption  is .  strengthened  by  historical 
evidence.  The  historians  of  Massachusetts,  and 
Dr.  Belknap,  in  his  letter  to  Judge  Tucker, (1)  prove 
that  slavery  had  been  nearly  or  altogether  abolished 
before  the  revolution.  The  cfese  of  Sommersett  was 
re-printed  and  circulated  here — it  was  cited  in  the 
courts.  Negroes  were  encouraged  by  it  to  sue  for 
their  liberty— and  the  Courts  of  Justice,  long  before 
the  State  Constitution  (as  early  as  1770)  universal¬ 
ly  sustained  their  claim.  Was  it  to  be  believed, 
that,  when  we  thus  by  acclamation  adopted  one  part 
of  the  doctrine  in  Sommersett’s  case,  we  rejected 
the  other?  That,  when  we  followed  the  splendid 
example  of  England,  and  declared  that  our  own  cit¬ 
izens  should  not  pollute  our  soil  with  slaves,  we  did 
not  also  follow  the  entire  example,  by  declaring  that 
foreigners  should  not  do  what  was  forbidden  to  our 
citizens  ? 

The  principle  was  applicable  to  our  circumstan¬ 
ces  at  that  time — it  accorded  perfectly  with  our 
known  feelings  and  dispositions  on  the  subject  of 
slavery — the  public  mind  was  fully  prepared  for  it — 
and  it  cannot  be  doubted  that  it  was  adopted.  It 
might  be  added,  that  there  was  not  the  slightest  ev- 

(1)  In  the  Massachusetts  Historical  Collections. 
See  also,  Bradford’s  History  of  Massachusetts, 


idence  of  any  local  law  of  Massachusetts  on  this 
subject  different  from  the  law  of  England — there 
were  no  decisions  and  no  practice  and  no  recollec¬ 
tions  of  court  or  counsel  to  shew  it.  There  was 
nothing  in  our  relations  at  that  time  to  the  othei 
Colonies  to  induce  a  presumption  that  we  shoulc 
refuse  to  adopt  this  principle  of  English  law,  'rom 
any  disposition  to  favor  their  system  of  slavery  L 
is  notorious,  that  we  were  hostile  to  those  systems, 
and  that  ill  blood  was  excited  between  the  Norlhern 
and  Southern  Colonies,  on  the  subject  of  slavery, 
before  and  during  the  revolution.  This  feeling  man¬ 
ifested  itself  strongly  during  the  discussion  on  the 
articles  of  confederation.  It  is  well  known,  that 
some  of  the  free  States  even  refused  to  permit  slave¬ 
holders  to  follow  fugitive  slaves  into  their  territo¬ 
ries.  Can  there  be  stronger  evidence  that  they  did 
not  adopt  any  such  principle  of  comity  as  is  here 
contended  for — and  did  adopt  the  whole  doctrine  of 
Sornmersett’s  case  ?  The  state  of  feeling, — in  the 
Convention  which  formed  the  Federal  Constitution, 
and  in  the  Conventians  of  the  fiee  States  which 
adopted  it, — touching  the  question  of  slavery,  is 
matter  of  history. 

Stronger  reasons  existed,  why  England  should 
have  respected  the  ex  loci  of  her  own  West  India 
islands  concerningslaves,  than  that  we  should  have 
respected  the  lex  l>ci  of  the  other  Colonies.  Eng¬ 
land  had  made  tin  lex  loci  of  the  West  Indies  ;  she 
hadreared  up  sh very  there  ;  she  had,  in  various 
ways,  through  ter  legislation  and  by  her  public  offi¬ 
cers,  invited  he:  West  India  subjects  to  bring  their 
slaves  to  England,  on  the  assurance  that  their  prop¬ 
erty  in  them  siould  be  respected.  Many  thousands 
of  them  were  there,  at  the  time  Sommersett’s  case 
was  decided  whom  that  decision  instantly  enabled 
to  set  themselves  free.  It  must  have  been  a  clear 
and  energetic  principle  of  the  English  law,  which 
asserted  itself  against  all  these  interests  and  consid¬ 
erations.  It  could  not  be  pretended  that  we  were 
under  any  such  obligation— as  that  of  England  to 
her  West  Indies — towards  the  Southern  Colonies 
of  this  Country.  We  had  nothing  to  do  in  forcing 
slavery  upon  them,  and  without  injustice  or  discour¬ 
tesy,  might  exclude  it  from  our  territory. 

An  additional  ground  of  presumption  that  the  doc¬ 
trine  of  Sommersett’s  case  was  adopted  here,  is, 
that  it  was  even  then  the  doctrine  of  every  code  of 
Europe.  It  is  part  of  the  universal  jurisprudence 
of  all  civilization,  and  not  merely  of  the  common 
law  of  England.  Authorities  cited  in  Mr.  Har¬ 
grave’s  argument,  and  Mr.  Justice  Story’s  authori¬ 
tative  and  masterly  work  on  the  Conflict  of  Laws 
fully  sustain  this  position.  No  State  in  Europe, 


50 


Hon.  Rufus  Choate,  for  the  Petitioner. 


laving  abolished  slavery  at  home,  though  permit¬ 
ting  it  in  its  colonies,  allows  the  colonial  law  of  sla- 
7erytobe  pleaded  against  the  slave  asserting  his 
Ibeity  in  the  domestic  court ;  and  none  did  so  at  the 
lime  slavery  was  abolished  here.  How  was  it  to  be 
pretended,  that  we  disregarded  the  universal  exam¬ 
ple? 

An  examination  of  the  general  principles,  by 
which  the  extension  of  comity  to  a  foreign  law  is 
admitted  to  be  regulated,  will  shew  that  it  is  impos- 
sible  that  Massachusetts  should  have  introduced  in¬ 
to  lie:  code  the  principle  of  comity  here  contended 
for.  Those  general  principles  are  clearly  stated  by 
Mr.  Justice  Story  in  his  ‘  Conflict  of  Laws.’  It  ap¬ 
pears  to  be  clear  that  comity  is  not  to  be  applied  to 
a  fore  gn  law  which  is  contrary  to  morality.  .  Now 
in  the  judgment  of  the  law  of  Massachusetts  as  it 
stood  in  1769,  slavery  was  contrary  to  morality. 
The  Constitution  of  Massachusetts  (its  paramount 
law)  asserted  the  great  principle  that  all  men  are 
born  free,  and  that  the  righ'.  to  liberty  was  inalien¬ 
able  It  follows  that  to  depfve  one  of  that  liberty 
is  unjust,  and  contrary,  of  eoirse.to  morality.  By 
the  law  of  Massachusetts,  ther,  as  declared  in  17S0, 
slaveholding  is  immoral.  IV tat  sort  of  comity  is 
that,  which  compliments  a  foreigier  with  the  license 
to  commit  what  the  law  declare  to  be  a  crime,  if 
committed  by  an  inhabitant  ?  Ctmity  is  only  poli¬ 
cy  and  courtesy — and  is  never  It  be  indulged,  at 
the  expense  of  what  the  State,  as  aState,by  its  pub¬ 
lic  law,  declares  to  be  justice. 

Dr.  Belknap  stales,  in  his  lettei  before  referred 
to,  that  the  clause  before  cited  from  he  Declaration 
of  Rights,  (the  inalienableness  of  J.berty)  was  in¬ 
serted  expressly  to  put  the  abolition  ct  slavery  on  a 
general  principle,  that  is,  upon  the  principle  that 
slavery  is  unjust — immoral — against  natural  rights. 
That  this  sentiment  of  the  law  of  Massachusetts  is 
further  manifested  by  the  statute  of  1789,  c.  48.  It 
may  be  added  that  every  historian  of  tint  time  as¬ 
serts,  and  every  well-informed  man  in  tlie  commu¬ 
nity  now  believes,  that  by  the  public  sentiment  of 
Massachusetts  of  that  time,  slavery  was  held  unjust 
and  criminal. 

Comity  to  a  foreign  law,  upon  the  general  princi¬ 
ples  which  regulate  it,  never  is  extended  so  far  as 
to  permit  a  foreigser  to  do  with  impunity  that  which 
the  domestic  criminal  law  punishes  in  a  citizen. 
But  if  a  foreign  mastei  may,  on  the  foreign  law,  re¬ 
strain  his  slave  here  for  the  purpose  of  carrying  him 
back  to  slavery,  and  the  slave  should  make  an  efl'oit 
to  escape,  and,  in  the  struggle,  his  master  should 
kill  him,  the  act  would  necessarily  be  innocent,  ex¬ 
cusable,  or  justifiable.  The  same  act,  committed  by 
a  citizen  of  Massachusetts,  would  be  murder.  This 


license  to  a  foreigner,  to  be  exempted  from  a  domes¬ 
tic  criminal  law  governing  the  citizen,  may  be  given 
by  special  and  arbitrary  dispensation,  but  can  never  le 
the  result  of  general  principles. 

It  was  also  to  be  observed,  that  no  decision  of  any 
court  of  any  free  State  had  been  produced  to  shew 
that  a  different  doctrine  had  been  holden  elsewhere. 
The  opinion  of  Judge  Morris,  so  far  as  it  bears  on  this 
question,  was  an  obiter  dictum,  and  is  no  evidence 
of  the  law  of  Indiana.  The  point  in  judgment  he 
decided  rightly.  The  special  legislation  of  some  free 
States,  for  the  protection  of  the  master’s  property  in 
slaves  during  a  temporary  residence,  has  no  tendency 
to  shew  that  the  common  law  of  those  States  would 
allow  that  protection — hut  implies  that  it  would  not. 
It  can  have  no  tendency  to  illustrate  our  common 
law.  Decisions  are  referred  to,  that  slaves,  who  have 
been  carried  by  their  masters  into  a  free  State,  tem¬ 
porarily  restrained  there,  and  brought  back  to  a  slave 
State,  (having,  while  in  the  free  State,  made  no  as¬ 
sertion  of  their  liberty  by  writ.)  may  be  holden  as 
slaves,  that  is,  that  a  temporary  residence  in  a  free 
State,  unaccompanied  by  a  suit  for  liberty  there,  could 
not  be  set  up,  on  their  return  to  the  slave  State,  against 
the  title  of  the  master.  But  this  had  not  the  slightest 
tendency  to  shew,  that  if  the  slave  had  sued  for  his 
liberty,  while  in  the  free  State,  his  claim  must  not 
have  been  allowed.  The  same  doctrine  is  holden  in 
the  Admiralty  Court  of  England,  where,  however, 
the  doctrine  of  Sommcrsett’s  case  is  admitted  to  be 
settled  law.- 

On  these  grounds  it  is  submitted,  that  the  court 
will  presume  and  declare,  that  up  to  the  adoption  of 
the  Federal  Constitution,  it  was  a  principle  of  the 
common  law  of  Massachusetts  after  she  had  abolished 
slavery,  that  national  comity  was  inapplicable  to  a 
foreign  law  of  slavery  set  up  in  her  courts  against  a 
person  asserting  his  liberty  under  the  domestic  law. 

2. — The  next  question  is,  to  what  extent  did  the 
adoption  of  the  Federal  Constitution  change  the  com¬ 
mon  law  of  Massachusetts  ? 

It  made  just  such  a  change,  as  the  terms  of  that  in¬ 
strument,  justly  construed,  created — and  no  more. 
All  grants  of  power  to  the  general  government  or  to 
the  other  States,  all  prohibitions  upon  the  power  of 
this  State,  are  to  be  justly  construed  and  enforced  ; 
and  beyond  that,  the  court  will  say,  the  common  law 
of  Massachusetts  underwent  no  change.  If,  before 
the  adoption  of  that  instrument,  the  common  law  of 
Massachusetts  did  not  extend  comity  to  any  foreign 
law  of  slavery,  it  docs  not  now,  unless  the  terms  of 
the  constitution,  properly  construed,  require  it  to  do 
so.  All  schools  of  construction  must  pdmit  this  prin¬ 
ciple. 


31 


Hon.  Rufus  Choate,  for  the  Petitioner. 


Then,  there  is  no  clause  in  the  constitution,  giving 
to  this  roaster  the  right  to  assert  the  law  of  Louisiana 
against  the  law  ol  Massachusetts,  and  prohibiting 
Massachusetts  from  asserting  her  common  law,  under 
the  circumstances  of  the  case  now  before  the  court. 
The  provision  concerning  fugitive  slaves  is  admitted 
to  be  inapplicable.  The  decision  of  Mr.  Justice  Wash¬ 
ington  and  of  the  court  of  Louisiana  itself  are  directly 
in  point.  The  case,  then,  of  a  master  voluntarily 
bringing  his  slave  here,  stands  on  the  old,  unaltered 
law  of  Massachusetts. 

To  assert  that  the  new  relations  and  closer  union 
created  by  the  Federal  Constitution  required  a  comi¬ 
ty  to  the  local  law  of  slave  States,  which  did  not  ex¬ 
ist  before,  avails  nothing.  The  court  will  require  ev¬ 
idence,  that  this  State  determined,  upon  the  adoption 
of  the  constitution,  to  extend  such  comity.  But  there 
is  no  evidence  of  an  intention  to  do  any  thing, to  give  any 
thing,  but  the  constitution  itself.  There  is  no  legislation 
showing  such  intention.  It  was  well  known,  too,  that 
what  the  constitution  actually  conceded  on  this  subject, 
the  free  States  conceded  reluctantly,  and  on  the  princi- 

4 


pies  ef  compromise.  To  imply  concessions  beyond 
such  a  grant,  accompanying  it  but  not  named  in  it, 
would  be  wholly  inadmissible. 

It  was  said,  since  the  adoption  of  the  constitution, 
we  are  not  at  liberty  to  say,  that  slaveholding  is  im¬ 
moral.  But  it  has  been  shown,  that,  by  the  law  of 
Massachusetts  before  the  constitution,  slaveholding 
was  declared  immoral,  and  abolished  ;  and  the  princi¬ 
ple  of  the  inapplicableness  of  comity  to  foreign  laws 
of  slavery  settled.  We  do  not,  by  the  constitution, 
falsify  our  legal  history.  We  do  not,  by  the  consti¬ 
tution,  declare  that  it  is  moral  or  lawful  to  do  any 
thing  more  within  our  territory,  than  to  arrest  a  fugi¬ 
tive  slave,  and  take  him  at  once  away.  Beyond  that, 
the  legal  morality  of  Massachusetts  is  unchanged. 
All  other  acts  and  incidents  of  slaveholding  are  by  our 
law  as  immoral  as  ever.  Legal  Morality,  so  to  speak, 
like  all  the  parts  of  law,  is  arbitrary,  conventional,  and 
of  positive  institution,  to  a  great  extent.  The  gov¬ 
ernment  of  a  country  may  declare  the  same  act  im¬ 
moral  in  one  part  of  its  territory,  and  moral  in  another. 


CHARLES  P.  CURTIS,  ESQ.,  FOR  THE  RESPONDENT. 


Mr.  C.  P.  Curtis  remarked, in  reply  to  Mr.  Choate, 
that  we  should  keep  clearly  in  view  the  point  pre¬ 
sented  on  this  return.  The  point  is  that  a  citizen  of  a 
State  of  this  Union,  in  which  slavery  is  tolerated,  who 
comes  here  for  business  or  pleasure,  bringing  a  slave 
with  him,  may  retain  the  slave  and  take  him  away 
when  he  returns  to  his  own  State,  and  this  will  be  no 
violation  of  the  laws  of  Massachusetts. 

It  is  conceded  that  this  child  is  a  slave  by  the  law 
of  Louisiana.  Moveable  property  accompanies  the 
proprietor  in  his  change  of  domicil,  and  its  rights  fol¬ 
low  his  person  like  his  shadow.  What  is  the  law  of 
property  in  his  own  country,  is  as  to  him,  the  law  in 
the  country  which  he  visits. 

It  has  not  been  denied  that  it  is  the  province  ol  the 
courts  to  decide  how  far  a  foreign  law  shall  by  com¬ 
ity  be  introduced  here.  If  the  court  may  decide  on 
the  admission  of  the  foreign  law,  it  may  modify  that 
law.  The  court  would  allow  the  slaveholder  to  take 
away  his  slave,  but  not  to  beat  him,  or  exercise  over 
him  any  authority, (except  that  of  necessary  restraint,) 
which  though  lawful  at  home,  would  be  unlawful 
here. 

The  principles  of  international  law  are  broad  enough 
to  admit  comity  to  apply  in  this  case.  The  case  of 
Madrazo,  in  Barnwell  and  Alderson,  recognises  a 
right  of  property  in  slaves.  It  is  true  that  some  years 
after,  Mr.  Justice  Best,  one  of  the  Judges  who  decid¬ 
ed  that  case,  indulged  in  some  remarks  at  variance 
with  this  decision,  but  they  were  uncalled  for  by  the 
occasion  on  which  they  were  uttered,  and  only  went 
to  show  his  private  opinion.  In  the  case  of  the  Ante¬ 
lope,  10  Wheaton,  it  was  decided  by  the  Supreme 
Judicial  Court  of  the  United  States,  that  the  Spanish 
claimant  should  recover  the  slaves  that  had  been  ta¬ 
ken  from  his  vessel  and  which  were  identified,  and 
the  demand  of  the  Portuguese  Consul  was  refused 
only  on  the  ground  that  he  furnished  no  evidence 
that  any  of  the  slaves  belonged  to  Portuguese  sub¬ 
jects.  Thus  the  slaves  were  clearly  recognized  as 
legal  property.  The  claimant  of  such  property  may 
not,  in  the  opinion  of  some,  have  a  moral  right  to  hold 
it,  but  the  question  here  to  be  settled  is,  not  what  a 
moralist  would  say  of  the  claim,  but  what  is  the  law  ? 

In  a  court  of  law  the  morality  of  an  act  is  to  be 
judged  of  by  a  legal  standard.  So  say  Sir  Wm.  Scott, 
and  Ch.  J.  Marshall.  Is  it  immoral,  then,  judging 
by  such  standard,  to  send  this  child  back  to  Louisiana  ? 


In  the  case  of  the  Commonwealth  v.  Griffith, (1)  it 
was  decided  that  in  the  case  of  a  fugitive  slave,  this 
court  are  to  give  a  certificate  to  enable  the  master  to 
take  back  his  property.  Is  that  to  be  considered  im¬ 
moral,  which  the  court  is  bound  to  assist  in  doing  ? 

The  junior  counsel  relies  on  the  constitution  of  Mas¬ 
sachusetts,  which  asserts  that  all  men  are  born  free 
and  equal.  Suppose  it  to  be  true  that  under  this  con¬ 
stitution  it  was  illegal  to  hold  slaves,  yet  a  change  has 
since  been  made  by  the  adoption  of  the  constitution 
of  the  United  States,  and  it  is  not  for  us  now  to  de¬ 
nounce  as  legally  immoral,  a  practice  which  is  per¬ 
mitted  and  sanctioned  by  the  supreme  law  of  the  land. 
But  it  is  said  the  United  States  constitution  was  a 
compromise.  True.  There  was  a  compromise  as  to 
the  mode  of  raising  the  revenue,  and  as  to  the  ratio  of 
representation,  &.e.,  and  notwithstanding  the  alleged 
immorality  of  slavery,  we  all  accede  to  a  compact  by 
which  slaves  are  allowed  to  be  represented.  The  law 
of  Massachusetts  was  changed  by  that  instrument,  so 
that  even  if  according  to  our  law,  slavery  were  im¬ 
moral  before  1789,  it  is  not  so  now.  Admitting  that 
slavery  was  abolished  in  Massachusetts  in  1770,  the 
conclusion  is  not  affected  by  the  admission. 

It  is  said  there  can  be  no  reciprocity  in  this  matter 
between  us  and  the  north,  for  we  have  no  slaves,  and 
therefore  Louisiana  cannot  return  the  favor  here  ask¬ 
ed.  It  is  true  that  the  favor  cannot  be  reciprocated 
exactly  in  kind,  but  there  may  be  cases  in  which  the 
courts  of  Louisiana  may  he  called  on  to  aid  a  citizen 
of  Massachusetts,  as  in  reclaiming  a  fugitive  wife  or 
son,  or  in  seizing  a  party  for  whom  he  was  bail.  Could 
the  courts  there  say  in  such  a  case,  that  they  had  in 
Louisiana,  no  law  of  the  kind  sought  to  be  enforced, 
and  so  there  could  be  no  reciprocity,  and  on  that 
ground  refuse  their  assistance  ?  It  may  be  said  that 
in  the  case  of  a  wife  or  the  principal  in  a  bail  bond,  a 
contract  exists,  but  there  is  no  contract  in  the  case  of 
a  son. 

As  to  the  case  of  the  slaves  cast  upon  the  Bermu¬ 
das  and  set  free  by  the  courts  of  that  island,  it  is  said 
that  their  emancipation  has  been  submitted  to  without 
remonstrance  on  the  part  of  our  goverment.  IIowr  do 
we  know  that  ?  How  should  we  learn  it,  if  remon¬ 
strances  had  been  made  ?  Are  diplomatic  measures 
sounded  with  a  trumpet  through  the  land  ?  But  we 
do  not  know  the  circumstances  of  that  occurrence  ex¬ 
cept  by  public  rumor.  If  the  facts  are  as  rumor  has 
reported  them,  it  was  a  most  extraordinary  act — that 


(1)  2  Tick.  Kep.  11. 


Charles  P.  Curtis,  Esq.,  for  the  Respondent. 


33 


the  property  of  a  friendly  nation,  cast  on  shore  by  a 
storm,  should  be  forcibly  taken  away  from  the  own¬ 
ers.  The  books  are  full  of  cases  of  every  other  spe¬ 
cies  of  property,  in  which  it  has  been  held  that,  so 
circumstanced,  it  should  not  be  confiscated.  The 
case  in  the  10th  Wheaton,  is  exactly  like  the  Bermu¬ 
da  case,  and  the  courts  of  the  United  States  restored 
the  property  to  the  owners.  So  that  the  Bermuda 
law,  if  rightly  reported,  conflicts  with  ours. 

We  have  been  reminded  of  the  southern  laws,  hy 
which  colored  cooks,  seamen,  &c.  on  board  our  ships 
coming  into  the  ports  of  slave  States,  are  imprisoned. 
But  their  laws  have  been  adjudged  unconstitutional 
and  void.  Mr.  Justice  Johnson,  one  of  the  Judges  of 
the  Supreme  Court,  liberated  those  who  were  impris¬ 
oned  under  these  laws,  and  the  laws  themselves  have 
since  been  altered.  No  instance  of  such  imprison¬ 
ment,  we  believe  has  occurred  since  Judge  Johnson’s 
decision,  and  probably  no  more  will  occur. 

[Putnam  J.  I  know  of  one  instance  which  has  oc¬ 
curred  within  three  or  four  years,  at  Charleston.] 

It  is  said  that  there  is  no  room  for  comity,  where 
the  subject  has  been  made  a  matter  of  express  regu¬ 
lation,  and  that  the  express  provision  in  the  constitu¬ 
tion  as  to  one  case,  excludes  all  others.  But  we  think 
there  was  a  good  reason  for  inserting  that  provision, 
which  does  not  extend  to  this  case.  That  was  to  meet 
a  case,  in  which  the  active  interposition  of  the  court, 
was  required.  Here  we  do  not  ask  any  interposition 
of  the  court,  except  to  leave  the  individual  just  where 
it  finds  him.  This  we  think  a  sufficient  answer  to  the 
remark  that  comity  does  not  apply,  because  the  sub¬ 
ject  has  been  one  of  express  regulation.  In  the  case 
in  Barnwell  and  Creswall  before  cited,  this  same  dis¬ 
tinction  was  taken,  between  making  the  law  of  Eng¬ 
land  active,  and  leaving  it  passive. 

It  is  said  the  court  may  be  called  upon  to  justify 
polygamy  or  infanticide,  if  it  should  he  decided  that 
the  lex  loci  should  prevail.  We  reply  that  it  has  pow¬ 
er  to  say  that  the  lex  loci  which  permits  crimes,  shall 
not  prevail  here. 

In  the  case  cited  on  the  other  side,  from  the  2.  Barn¬ 
well  and  Creswall,  the  court  rely  on  the  fact  that  the 
Plaintiff  was  a  British  subject. 

[Loring. — We  do  not  so  understand  it.  Forbes  was 
considered  for  the  purpose  of  that  case,  a  Spanish  sub¬ 
ject.] 

Curtis  proceeded.  It  is  said  the  practice  of  slavery 
is  corrupting  in  its  influence  on  public  morals.  But 
the  practice  of  bringing  slaves  here,  was  much  more 
common  thirty  years  ago,  than  now.  If  this  practice 
be  so  corrupting,  why  is  it  tolerated  in  other  States  ? 
Does  its  corrupting  influence  stop  at  the  line  of  Rhode 
Island,  where  the  slaveholders  congregate  every  sum¬ 


mer  in  considerable  numbers?  The  law  of  New 
York  allows  even  foreigners  to  go  there  with  their 
slaves  ;  and  have  the  morals  of  that  State  suffered  in 
consequence  ?  In  Pennsylvania,  too,  the  law  is  sim¬ 
ilar,  but  where  is  the  evidence  of  its  pernicious  influ¬ 
ence  there  ?  If  the  supposition  be  correct,  however, 
it  is  merely  an  argument  to  be  addressed  to  those  who 
are  to  change  the  law,  not  to  this  court,  whose  sole 
business  is  to  declare  it. 

Buchell’s  case  has  been  introduced  on  the  other 
side.  That  was  an  application  for  a  certificate,  and 
was  refused  because  the  master  had  voluntarily  brought 
the  slave  to  a  free  State,  and  therefore  he  was  not  a 
fugitive.  So  of  the  case  in  2.  Sergeant  and  Rawle, 
305.  The  mother  was  restored  to  the  claimant,  but 
the  child  having  been  born  in  Pennsylvania,  was  held 
not  to  be  a  fugitive.  In  both  those  cases,  the  active 
interposition  of  the  court  was  claimed. 

Suppose  it  is  decided  that  the  master  may  take  his 
slaves  back  with  him,  is  it  not  for  their  advantage  to 
be  brought  here  ?  May  not  the  master  be  benefited 
by  coming  here,  and  is  not  the  chance  to  escape, 
which  coming  here  offers,  a  benefit  to  the  slave  ?  In 
fact,  many  have  availed  themselves  of  this  chance,  to 
obtain  freedom. 

It  is  asked  how  long  a  slaveholder  may  remain 
here,  and  retain  his  power  to  carry  back  his  slaves  on 
his  return  ?  We  answer,  until  by  remaining,  he  ac¬ 
quires  a  domicil  here.  If  this  is  not  precise  enough, 
let  the  legislature  fix  the  time,  as  other  free  States 
have  done. 

It  is  said,  that  it  was  decided  in  Sommersett’s  case, 
that  when  slavery  is  abolished,  the  doctrine  of  comi¬ 
ty  ceases  as  to  it.  Hargrave  does  indeed  so  argue, 
but  there  is  nothing  in  Lord  Mansfield’s  opinion,  to 
that  effect.  That  case  did  not  present  the  question  of 
comity.  It  was  a  case  in  an  English  court,  of  a  Brit¬ 
ish  subject  claiming  a  right  to  own  a  slave.  AVhere 
is  the  comity  of  nations  between  England  and  her 
colony  ?  As  in  a  question  as  to  the  custom  of  London 
or  the  custom  of  Kent,  the  court  might  listen  to  the 
lex  loci,  but  not  to  considerations  of  comity. 

It  is  asserted  that  Sommersett’s  case  became  the 
law  here.  If  so,  why  did  it  not  also  become  law  in 
all  the  other  colonies — in  New  York,  New  Jersey, 
Pennsylvania,  Connecticut,  Rhode  Island?  Yet  all 
those  States  have  had  slaves  long  since  Sommersett’s 
case,  and  without  regard  to  Lord  Mansfield’s  decision. 
It  is  asked,  if  what  is  not  permitted  to  our  own  citi¬ 
zens,  shall  be  allowed  to  those  of  other  States  ? 
We  permit  strangers  to  make  contracts  which  we 
might  not  permit  to  our  own  citizens.  Among  others, 
we  allow  them  to  contract  for  greater  rates  of  inter¬ 
est  of  money  than  we  permit  in  contracts  made  here, 
and  our  courts  enforce  such  engagements. 


34 


Charles  P.  Curtis,  Esq.,  for  the  Respondent. 


We  do  not  deny  that  our  legislature  could  declare 
it  unlawlul  to  bring  slaves  here.  But  till  they  do  so, 
we  have  only  to  take  the  law  as  it  is.  Our  law,  since 
the  constitution  of  the  United  States,  stands  on  differ¬ 
ent  grounds  from  what  it  did  before  that  compact ; 
the  people  of  Massachusetts  have  recognized  rights 
in  the  citizens  of  other  States  changing  materially  our 
relations. 

It  is  said  that  though  the  members  of  the  conven¬ 
tion  from  the  free  States,  who  assisted  in  framing  the 
constitution,  might  have  been  willing  to  allow  fugi¬ 


tive  slaves  to  be  taken  away  from  those  States,  yet 
they  might  not  be  willing  to  let  the  master  bring  his 
slaves  into  these  States  voluntarily,  and  use  them 
here.  We  do  not,  in  this  case,  claim  any  other  right 
than  that  of  needful  restraint  here,  and  in  itinere,  and 
as  to  the  right  to  using  them,  notwithstanding  the 
supposed  horror  at  such  an  admission,  the  legislatures 
of  New  York  and  Pennsylvania,  Rhode  Island  and 
New  Jersey  have  actually  enacted  statutes  allowing 
precisely  that  very  privilege. 


OPINION  OF  THE  COURT. 


August  27,  183G. 

Shaw,  C.  J. — The  question  now  before  the  Court  arises 
upon  a  return  to  a  Habeas  Corpus,  originally  issued  m  va¬ 
cation,  by  Mr.  Justice  Wilde,  for  the  purpose  of  bringing  up 
the  person  of  a  colored  child  named  Med,  and  instituting  a 
legal  inquiry  into  the  fact  ofher  detention, and  the  causes  for 
which  she  was  detained.  By  the  provisions  of  the  revised 
code,  the  practice  upon  habeas  corpus  is  somewhat  alter¬ 
ed.  In  case  the  party  complaining,  or  in  behalf  of  whom 
complaint  is  made,  on  the  ground  of  unlawful  imprison¬ 
ment,  is  not  in  the  custody  of  an  officer,  as  of  a  Sheriff  or 
deputy,  or  corresponding  officer  of  the  U.  S.,  the  writ  is 
directed  to  the  Sheriff,  requiring  him  or  his  deputy  to  take 
the  body  of  the  person  thus  complaining,  or  in  behalf  of 
whom  complaint  is  thus  made,  and  have  him  before  the 
court  or  magistrate  issuing  the  writ,  and  to  summon  the 
parly  alleged  to  have  or  claim  the  custody  of  such  person, 
to  appear  at  the  same  time,  and  show  the  cause  of  the  de¬ 
tention.  The  person  thus  summoned  is  to  make  a  state¬ 
ment  under  oath,  selling  forth  all  the  facts  fully  and  partic¬ 
ularly;  and  in  case  he  claims  the  custody  of  such  party, 
the  grounds  of  such  claim  must  be  fully  set  forth.  This 
statement  is  in  the  nature  of  a  return  to  the  writ,  as  made 
under  the  former  practice,  and  will  usually  present  the  ma¬ 
terial  facts  upon  which  the  questions  arise.  Such  return, 
however,  is  not  conclusive  of  the  facts  stated  in  it,  but  the 
court  is  to  proceed  and  inquire  into  all  the  alleged  causes 
of  detention,  and  decide  upon  them  in  a  summary  manner. 
But  the  court  may,  if  occasion  require  it,  adjourn  the 
examination,  and  in  the  meantime  bail  the  parly,  or  com¬ 
mit  him  to  a  general  or  special  custody,  as  the  age,  health, 
sex,  and  other  circumstances  of  the  case  may  require.  It 
is  further  provided  that  when  the  writ  is  issued  hv  one  Judge 
of  the  court  in  vacation,  and  in  the  meantime,  before  a  final 
decision,  the  court  shall  meet  in  the  same  county,  the  pro¬ 
ceedings  may  be  adjourned  into  the  court,  and  there  be 
conducted  to  a  final  issue,  in  the  same  manner  as  if  they 
had  been  originally  commenced  by  a  writ  issued  from 
the  court.  I  have  stated  these  provisions  the  more  mi¬ 
nutely,  because  there  have  been  as  yet  but  few  proceed¬ 
ings  under  the  revised  statutes,  and  the  practice  is  yet 
to  be  established. 

Upon  the  return  of  this  writ  before  Mr.  Justice  Wilde, 
a  statement  was  made  by  Mr.  Aves,  the  respondent ;  the 
case  was  then  postponed.  It  has  since  been  fully  and 
very  ably  argued  before  all  the  Judges,  and  is  now  trans¬ 
ferred  to  and  entered  in  court,  and  stands  here  for  judg¬ 
ment,  in  the  same  manner  as  if  the  writ  had  been  origin¬ 
ally  returnable  in  court. 

The  return  of  Mr.  Aves  states  that  he  has  the  body  of 
the  colored  child  described  in  his  custody,  and  produces 
her.  It  further  states  that  Samuel  Slater,  a  merchant,  cit¬ 
izen  and  resident  in  the  city  of  New  Orleans  and  State 
of  Louisiana,  purchased  the  child  with  her  mother  in  1833, 
the  mother  and  child  being  then  and  long  before  slaves  by 
the  laws  of  Louisiana  ;  that  they  continued  to  be  his 
property,  in  his  service,  at  New  Orleans,  till  about  the 
first  of  May  last,  when  Mary  Slater,  his  wife,  the  daugh¬ 


ter  of  Mr.  Aves,  left  New  Orleans  for  Boston,  for  the 
purpose  of  visiting  her  father,  intending  to  return  to  New 
Orleans  after  an  absence  of  four  or  five  months;  that  the 
mother  of  the  child  remained  at  New  Orleans  in  a  slate 
of  slavery,  but  that  Mrs.  Slater  brought  the  child  with  her 
from  New  Orleans  to  Boston,  having  the  child  in  her  cus¬ 
tody  as  the  agent  and  representative  of  her  husband, 
whose  slave  the  child  was,  by  the  laws  of  Louisiana, 
when  the  child  was  brought  thence;  the  object,  intent  and 
purpose  of  the  said  Mary  Slater  being  to  have  the  said 
child  accompany  her,  and  remain  in  her  custody,  and  un¬ 
der  her  care  during  her  temporary  absence  from  New  Or¬ 
leans,  and  that  the  said  child  should  return  with  her  to 
New  Orleans,  the  domicil  of  herself  and  her  husband; 
that  the  said  child  was  confided  to  the  custody  and  care 
of  said  Aves  by  Mrs.  Slater,  during  her  temporary  ab¬ 
sence  in  the  country  for  her  health.  The  respondent  con¬ 
cludes  by  slating  that  he  has  exercised  no  other  restraint 
over  the  liberty  of  this  child  than  sueli  as  was  necessary 
to  the  health  and  safety  of  the  child.  Notice  having  been 
given  to  Mr.  and  Mrs.  Slater,  an  appearance  has  been  en¬ 
tered  for  them,  and  in  this  state  of  the  case  arid  of  the 
parties,  the  cause  has  been  heard.  Some  evidence  was 
given  at  the  former  hearing,  but  it  does  not  materially 
vary  the  facts  staled  in  the  return.  The  fact  testified 
which  was  considered  most  material  was,  the  declared  in¬ 
tent  of  Mrs.  Slater  to  take  the  child  back  to  New  Orleans. 
But  as  that  intent  is- -distinctly  avowed  in  the  return,  that 
is,  to  take  the  child  back  to  New  Orleans,  if  it  could  be 
lawfully  done,  it  does  not  essentially  change  the  case 
made  by  the  return. 

This  return  is  now  to  be  considered  in  the  same  aspect 
as  if  made  by  Mr.  Slater.  It  is  made  in  fact  by  Mr.  Aves, 
claiming  the  custody  of  the  slave  in  right  of  Mr.  Slater, 
and  that  claim  is  sanctioned  by  Mr.  Slater,  who  appears 
by  his  attorney  to  maintain  and  enforce  it.  He  claims  to 
have  the  child  as  master,  and  carry  her  back  to  New  Or¬ 
leans,  and  whether  the  claim  has  been  made  in  terms  or 
not  to  hold  and  return  her  as  a  slave,  that  intent  is  mani¬ 
fest,  and  the  argument  has  very  properly  placed  the  claim 
upon  that  ground. 

The  case  presents  an  extremely  interesting  question, 
not  so  much  on  account  of  any  doubt  or  difficulty  attend¬ 
ing  it,  as  on  account  of  its  important  consequences  to 
those  who  may  be  affected  by  it,  either  as  masters  or 
slaves. 

The  precise  question  presented  by  the  claim  of  the  re¬ 
spondent  is,  whether  a  citizen  of  any  one  of  the  United 
States,  where  negro  slavery  is  established  by  law,  coming 
into  this  Slate,  for  any  temporary  purpose  of  business  or 
pleasure,  staying  some  time,  but  not  acquiring  a  domicil 
here,  who  brings  a  slave  with  him  as  a  personal  attendant, 
may  restrain  such  slave  of  his  liberty  during  his  continu¬ 
ance  here,  and  convey  him  out  of  this  State  on  his  return, 
against  his  consent.  It  is  not  contended  that  a  master 
can  exercise  here  any  other  of  the  rights  of  a  slave  own¬ 
er,  than  such  as  may  be  necessary  to  retain  the  custody 
of  the  slave  during  his  residence,  and  to  remove  him  on 
his  return. 


36 


Opinion  of  ilie  Court. 


Unlil  this  discussion,  I  had  supposed  that  there  had 
been  adjudged  cases  on  this  subject  in  this  Common¬ 
wealth^  and  it  is  believed  to  have  been  a  prevalent 
opinion  among  lawyers,  that  if  a  slave  is  brought  volun¬ 
tarily  and  unnecessarily  within  the  limits  of  this  slate,  he 
becomes  free,  if  he  chooses  to  avail  himself  ol  the  pro¬ 
visions  of  our  laws;  not  so  much  because  his  coming 
within  our  territorial  limits,  breathing  our  air,  or  treading 
on  our  soil,  works  anv  alteration  in  his  status,  or  condi¬ 
tion  as  settled  bv  the  law  of  his  domicil,  as  because  by 
the  operation  of  our  laws,  there  is  no  authority  on  the 
part  of  die  master,  either  to  restrain  the  slave  ol  his  lib¬ 
erty,  whilst  here,  or  forcibly  to  take  him  into  custody  in 
order  to  his  removal.  There  seems,  however,  to  be  no 
decided  case  on  the  subject,  reported. 

It  is  now  to  be  considered  as  an  established  rule,  that 
by  the  constitution  and  law's  of  this  Commonwealth,  be¬ 
fore  the  adoption  of  the  Constitution  of  the  United  Slates, 
in  1789,  slavery  was  abolished,  as  being  contrary  to  the 
principles  of  justice,  and  of  nature,  and  repugna  nt  to  the 
provisions  of  the  Declaration  of  Rights,  which  is  a  com¬ 
ponent  part  of  the  constitution  of  the  State. 

It  is  not  easy,  without  more  time  for  historical  research 
than  I  now  have,  to  show  the  course  of  slavery  in  Mas¬ 
sachusetts.  Bv  a  very  early  Colouial  Ordinance.  (1641) 
it  was  ordered,  that  there  should  be  no  bond  slavery,  vil- 
lenage,  or  captivity  amongst  us,  with  the  exception  of 
lawful  captives  taken  in  just  wars,  or  those  judicially 
sentenced  to  servitude,  as  a  punishment  f°r  crime.  And 
by  an  act  a  few  years  after,  (1646)  manifestly  alluding  to 
some  transaction  then  recent,  the  General  Court  conceiv¬ 
ing  themselves  bound  to  bear  witness  against  the  heinous 
and  crying  sin  of  man  stealing,  &<*.,  ordered  that  cer¬ 
tain  negroes  be  sent  back  to  their  native  country  (Guinea) 
at  the  charge  of  the  country,  with  a  letter  from  the  Gov¬ 
ernor  expressive  of  the  indignation  ef  the  Court  therea¬ 
bouts.  See  Ancient  Charters,  &c.  52,  chap.  12,  sec¬ 
tions  2,  3. 

But  notwithstanding  these  strong  expressions  in  the 
acts  of  the  Colonial  Government,  slavery  to  a  certain  ex¬ 
tent  seems  to  have  crept  in  ;  not  probably  by  force  of  any 
law,  for  none  such  is  found  or  known  to  exist;  but  rather, 
it  may  be  presumed,  from  that  universal  custom,  prevail¬ 
ing  through  the  European  colonies,  in  the  West  Indies, 
and  on  the  continent  of  America,  and  which  was  fostered 
and  encouraged  by  the  commercial  policy  of  the  parent 
states.  That  it  was  so  established,  is  shown  bv  this,  that 
by  several  provincial  acts,  passed  at  various  times,  in  the 
earlv  part  of  the  last  century,  slavery  was  recognized  as 
existing  in  fact,  and  various  regulations  were  prescribed 
in  reference  to  it — The  act  passed  June.  1703.  imposed 
certain  restrictions  upon  manumission,  and  subjected  the 
master  to  the  relief  and  support  of  the  slaves,  notwith¬ 
standing  such  manumission,  if  the  regulations  were  not 
complied  with.  The  act  of  October,  1705.  levied  a  duty 
and  imposed  various  restrictions  upon  the  importation  of 
negroes,  and  allowed  a  drawback  noon  anv  negro,  thus 
imported  and  for  whom  the  duty  had  been  paid,  if  export¬ 
ed  within  the  space  of  twelve  months  and  bona  fide,  sold 
in  any  other  plantation. 

How.  or  by  what  act  particularly,  slavery  was  abolish¬ 
ed  in  Massachusetts,  whether  bv  the  adoption  of  the  opin- 
lon  in  Sommersett’s  case,  as  a  declaration  and  modification 
of  the  common  law,  or  bv  the  Dpolaration  of  Independ¬ 
ence.  or  bv  the  Constitution  of  1780.  it  is  not  now  very 
easv  to  determine,  and  it  is  rather  a  matter  of  curiosity 
than  of  utility  ;  it  being  agreed  on  all  hands  that  if  not 
abolished  before,  it  was  so  bv  the  declaration  of  rights. 
In  the  ease  of  Winrhendon  vs.  Hatfield.  4  Mass.  R.  123. 
"hich  was  a  case  between  two  towns  respecting  the  sup¬ 
port  of  a  pauper.  Chief  Justice  Parsons,  in  giving  ihe 
opinion  of  tho  court,  states,  that  at  the  first  action  which 
came  before  the  court  after  the  establishment  of  the  con 
stitution,  the  judges  declared,  that  bv  virtue  of  the  de¬ 
claration  of  rights,  slavery  in  this  state  was  no  more. 
And  he  mentions  another  case,  Littleton  vs.  Tuttle.  4 
Mags.  R.  1S8,  note,  in  which  was  stated  as  the  unanim¬ 


ous  opinion  of  the  courl,  that  a  negro  born  within  the 
Slate,  before  the  constitution,  was  born  free,  though  born 
of  a  female  slave.  The  chief  justice,  however,  states, 
that  the  general  practice  and  common  usage  have  been 
opposed  to  ibis  opinion. 

It  has  recently  been  stated  as  a  fact,  that  there  were 
judicial  decisions  in  this  slate,  prior  to  die  adoption  of  die 
present  constitution,  holding  that  negroes  born  here  of 
slave  parents  were  free.  A  fact  is  slated  in  the  above 
opinion  of  Chief  Justice  Parsons,  which  may  account  for 
this  suggestion.  He  slates  that  several  negroes,  born  in 
this  country,  of  imported  slaves,  had  demanded  their 
freedom  of  their  masters  by  suits  of  law,  and  obtained  it 
by  a  judgment  of  court.  The  defence  o(  the  master,  he 
says,  was  faintly  made,  for  such  was  the  temper  of  the 
limes,  that  a  restless,  discontented  slave  was  worth  little, 
and  when  bis  freedom  was  obtained  in  a  course  of  legal 
proceedings,  bis  masier  was  not  liolden  for  his  support, 
if  lie  became  poor.  It  is  very  probable,  therefore,  that 
ibis  surmise  is  correct,  and  that  records  of  judgments  to 
this  effect  may  be  found  ;  but  they  would  throw  very  lit¬ 
tle  light  on  the  subject. 

Without  pursuing  this  inquiry  farther,  it  is  sufficient  for 
the  purposes  of  the  case  before  us,  that  by  Ihe  constitu¬ 
tion  adopted  in  1780,  slavery  was  abolished  in  Massachu¬ 
setts,  upon  the  ground  that  it  is  contrary  to  natural  right 
and  ihe  plain  principles  of  juslice.  The  terms  of  the  first 
ei tide  of  the  declaration  of  rights  are  plain  and  explicit. 
‘  All  men  are  born  free  and  equal,  and  have  certain  nat¬ 
ural,  essential  and  unalienahle  rights,  among  which  are, 
the  right  of  enjoying  and  defending  their  lives  and  liber¬ 
ties,  that  of  acquiring,  possessing  and  protecting  proper¬ 
ty.’  It  would  he  difficult  to  select  words  more  precisely 
adapted  to  the  abolition  of  negro  slavery.  According  to 
the  laws  prevailing  in  all  the  states,  where  slavery  is  up¬ 
held,  the  child  of  a  slave  is  not  deemed  to  be  born  free, 
a  slave  has  no  right  to  enjoy  and  defend  his  own  liberty, 
or  to  acquire,  possess,  or  protect  property.  That  the  de¬ 
scription  was  broad  enough  in  its  terms  to  emhrace  ne¬ 
groes,  and  that  it  was  intended  by  the  framers  of  the  con- 
slitution  to  embrace  them,  is  proved  by  the  earliest  con¬ 
temporaneous  construction,  by  an  unbroken  series  of  ju¬ 
dicial  decisions,  and  by  a  uniform  practice  from  the  adop¬ 
tion  of  the  constitution  to  the  present  time.  The  whole 
tenor  of  our  policy,  of  our  legislation  and  jurisprudence 
from  that  time  to  the  present,  has  been  consistent  with 
this  construction,  and  with  no  other. 

Such  being  the  general  rule  of  law,  it  becomes  neees- 
sary  to  inquire  how  far  it  is  modified  or  controlled  in  its 
operation  ;  either, 

1.  By  the  law  of  other  nations  and  states,  as  admitted 
by  the  romity  of  nations  to  have  a  limited  operation  with¬ 
in  a  particular  state  ;  or 

2.  By  the  constitution  and  laws  of  the  United  States. 

In  considering  the  first,  we  may  assume  that  the  law  of 

this  state  is  analogous  to  Ihe  law  of  England,  in  this  re¬ 
spect;  that  while  slavery  is  considered  as  unlawful  and 
inadmissible  in  both,  and  this  because  contrary  to  natur¬ 
al  right  and  to  laws  designed  for  the  security  of  personal 
liberty,  yet  in  both,  the  existence  of  slavery  in  other 
countries  is  recognised,  and  the  claims  of  foreigners, 
growing  out  of  that  condition,  are  to  a  certain  extent,  re¬ 
spected.  Almost  the  only  r-  ason  assigned  by  Lord  Mans¬ 
field  in  Sommersett’s  ca«e  was.  that  slavery  is  of  such  a 
nature  that  it  is  incapable  of  being  introduced  on  anv 
reasons  moral  or  political  but  only  by  positive  law  ;  and, 
it  is  so  odious,  that  nothing  can  be  suffered  to  support  it 
but  positive  law. 

The  same  doctrine  is  clearly  staled  in  Ihe  full  and  able 
opinion  of  Marshall  C.  J..  in  Ihe  case  of  Ihe  Antelope,  10 
Wheat.  120.  fie  is  speaking  of  the  slave  trade,  but  the 
remark  itself  shows  that  it  applies  to  the  stale  of  slavery. 

‘  That  it  is  contrary  to  the  law  of  nature  will  scarcely  be 
denied.  That  every  man  lias  a  natural  right  to  the  fruits 
of  his  own  labor,  is  generally  admitted,  and  that  no  other 
person  can  rightfully  deprive  him  of  those  fruits,  and  ap- 


Opinion  of  the  Court . 


37 


propriate  them  against  his  will,  seems  to  be  the  necessary 
result  of  the  admission.’ 

But  although  slavery  and  the  slave  trade  are  deemed 
contrary  to  natural  right,  yet  it  is  settled  by  the  judicial 
decisions  of  this  country  and  of  England,  that  it  is  not 
contrary  to  the  law  of  nations.  The  authorities  are  cited 
in  the  case  of  the  Antelope,  and  that  case  is  itself  an  au¬ 
thority  directly  in  point.  The  consequence  is,  that  eaclt 
independent  community,  in  its  intercourse  with  every  oth¬ 
er,  is  bound  to  act  on  the  principle,  that  such  other  coun¬ 
try  has  a  full  and  perfect  authority  to  make  such  laws  for 
the  government  of  its  own  subjects,  as  its  own  judgment 
shall  dictate  and  its  own  conscience  approve,  piovided 
the  same  are  consistent  with  the  law  ol  nations;  and  no 
independent  community  has  any  right  to  intefere  with  the 
acts  or  conduct  of  another  slate,  within  the  territories  of 
such  stale,  or  on  the  high  seas,  which  each  lias  an  equal 
right  to  use  and  occupy ;  and  that  each  sovereign  slate, 
governed  by  its  own  laws,  although  competent  and  well 
authorized  to  make  such  laws  as  it  may  think  most  expe¬ 
dient  to  the  extent  of  its  own  territorial  limits,  and  lor  the 
government  of  its  own  subjects,  yet  beyond  those  limits, 
and  over  those  who  are. not  her  own  subjects,  has  no  au¬ 
thority'  to  enforce  her  own  laws,  or  to  treat  the  laws  ol 
other  slates  as  void,  although  contrary  to  its  own  views  of 
morality. 

This  view  seems  consistent  with  most  of  the  leading 
cases  on  the  subject. 

Sommcrselt’s  case,  20  Howell’s  State  Trials  1,  as  al¬ 
ready  cited,  decides  that  slavery,  being  odious  and 
against  natural  right,  cannot  exist,  except  by  lorce  of  pos¬ 
itive  law.  But  it  clearly  admits,  that  it  may  exist  by 
force  of  positive  law.  And  it  may  be  remarked,  that  by 
positive  law  in  this  connection,  may  be  as  well  under¬ 
stood  customary  law  as  the  enactment  of  a  statute  ;  and 
the  word  is  used  to  designate  rules  established  by  tacit 
acquiescence  or  by  the  legislative  act  of  any  state,  and 
which  derive  their  force  and  authority  from  such  acquies¬ 
cence  or  enactment,  and  not  because  they  are  the  dictates 
of  natural  justice,  and  as  such  of  universal  obligation. 

1'ke  Louis,  2  Dodson’s  R.  238.  'This  was  an  elaborate 
opinion  of  Sir  Win.  Scott.  It  was  the  case  of  a  French 
vessel  seized  by  an  English  vessel  in  time  ol  peace,  whilst 
engaged  in  the  slave  trade.  It  proceeded  upon  the  ground 
that  a  right  of  visitation  by  the  vessels  of  one  nation,  ol 
the  vessels  of  another,  could  only  be  exercised  in  lime  of 
war,  or  against  pirates,  and  that  the  slave  trade  was  not 
piracy  by  the  laws  of  nations,  except  against  those  by 
whose  government  it  has  been  so  declared  by  law  or  by 
treaty.  And  the  vessel  was  delivered  up. 

The  Amedie,  1  Acton’s  R.  240.  The  judgment  of  Sir 
Win.  Grant  in  this  case,  upon  the  point  on  which  the  case 
was  decided,  that  of  the  burden  of  proof,  has  been  doubt¬ 
ed.  But  upon  the  point  now  under  discussion,  he  says, 
but  we  do  not  lay  down  as  a  general  principle,  that  this  is 
a  trade  which  cannot,  abstractedly  spending,  be  said  to 
have  a  legitimate  existence.  I  say  abstractedly  speaking-, 
because  we  cannot  legislate  for  other  countries;  nor  has 
this  country  a  right  to  control  any  foreign  legislature  that 
may  give  permission  to  its  subjects,  to  prosecute  this  trade. 
He  however  held,  in  consequence  of  lire  principles  declar¬ 
ed  by  the  British  government,  that  he  was  bound  to  hold 
prima Jacie,  that  the  traffic  was  unlawful,  and  threw  on 
the  claimant  the  burden  of  proof,  that  the  traffic  was  per¬ 
mitted  by  the  law  of  his  own  country. 

The  Diana,  1 ,  Dodson,  95.  This  case  strongly  corrob¬ 
orates  the  general  principle,  that  though  the  slave  trade  is 
contrary  to  the  principles  of  justice  and  humanity,  it  can¬ 
not  with  truth  be  said,  that  it  is  contrary  to  the  laws  of 
all  civilized  nations;  and  that  courts  will  respect  the  prop¬ 
erty  of  persons  engaged  in  it,  under  the  sanction  of  the 
laws  of  their  own  country. 

Two  cases  are  cited  from  the  decisions  of  courts  of 
common  law,  w'hicli  throw  much  light  upon  the  subject. 

JMaeTrazo  vs.  Willis ,  3  B.  and  Aid.  353.  It  was  an  ac¬ 
tion  brought  by  a  Spaniard  against  a  British  subject,  who 
had  unlawfully  and  without  justifiable  cause,  captured  a 


ship  with  three  hundred  slaves  on  board.  The  only  ques« 
tion  was  the  amount  of  damages,  Abbott  C.  J.,  who 
tried  the  cause,  in  reference  to  the  very  strong  language 
of  the  acts  of  Parliament,  declaring  the  traffic  in  slaves  a 
violation  of  right  and  contrary’  to  the  first  principles  of 
justice  and  humanity,  doubted  whether  the  owner  could 
recover  damages,  in  an  English  Court  of  Justice,  lor  the 
value  of  the  slaves  as  property,  and  directed  the  ship  and 
the  slaves  to  be  separately  valued.  On  further  consider¬ 
ation  he  and  the  whole  court  were  of  opinion,  that  the 
plaintiff  was  entitled  to  recover  for  the  value  of  the  slaves. 
That  opinion  went  upon  the  ground  that  the  traffic  in 
slaves,  however  wrong  in  itself,  if  prosecuted  by  a  Span¬ 
iard  between  Spain  and  the  coast  of  Africa,  and  if  per¬ 
mitted  by  the  laws  of  Spain,  and  not  restrained  by  treaty, 
could  not  be  lawfully  interrupted  by  a  British  subject,  on 
the  high  seas,  the  common  highway  of  nations.  And  Mr. 
Justice  Bayley  in  his  opinion,  after  slating  the  general  rule 
that  a  foreigner  is  entitled,  in  a  British  court  of  justice,  to 
compensation  for  a  wrongful  act,  added,  that  although  the 
language  used  by  the  statutes  was  very  strong,  yet  it  could 
only  apply  to  British  subjects.  It  is  true,  he  further  says, 
that  if  this  were  a  trade  contrary  to  the  laws  of  nations,  a 
foreigner  could  not  maintain  this  action.  And  Best  J. 
spoke  strongly  to  the  same  effect,  adding  that  the  statutes 
speak  in  just  terms  of  indignation  of  the  horrible  traffic  in 
human  beings,  but  they  speak  only  in  the  name  of  the  Brit¬ 
ish  nation.  If  a  ship  be  acting  contrary  to  the  general 
law  of  nations,  she  is  thereby  subject  to  confiscation  ;  but 
it  is  impossible  to  say  that  the  slave  trade  is  contrary  to 
what  may  be  called  the  common  law  of  nations. 

Forbes  vs.  Cochrane,  2  Barn.  &,  Cressw.448.  3Dowl.&. 
Ryl.  679.  This  case  has  been  supposed  to  conflict  with 
the  one  last  cited;  but  I  apprehend,  in  considering  the 
principles  upon  which  they  were  decided,  they  will  be 
found  to  be  perfectly  reconcilable.  The  plaintiff  a  Brit¬ 
ish  subject,  domiciled  in  East  Florida,  where  slavery  was 
established  by  law,  was  the  owner  of  a  plantation,  and  of 
certain  slaves,  who  escaped  thence  and  got  on  board  a 
British  ship  of  war  on  the  high  seas.  It  w  as  held  that  he 
could  not  maintain  an  action  against  the  master  of  the  ship 
for  harboring  the  slaves  after  notice  and  demand  of  them. 
Borne  of  the  opinions  given  in  this  case  are  extremely  in¬ 
structive  and  applicable  to  the  present.  Holroyd  J.,in 
giving  his  opinion,  said,  that  the  plaintiff  could  not  found 
his  claim  to  the  slaves  upon  any  general  right,  because  by 
the  English  laws,  such  a  right  cannot  be  considered  as  wai- 
ranted  by  the  general  law  of  nature,  that  if  the  plaintiff 
could  claim  at  all,  it  must  be  in  virtue  of  some  right,  which 
he  had  acquired  by  the  law  of  the  countiy  where  he  was 
domiciled,  that  when  such  rights  arc  recognized  by  law, 
they  must  be  considered  as  founded,  not  upon  the  law  of 
nature,  but  upon  the  particular  law  of  that  country,  and 
must  be  co-extensive  with  the  territories  of  that  state  ; 
that  if  such  right  were  violated  by  a  British  subject,  with¬ 
in  such  territory,  the  party  grieved  would  be  entitled  to 
a  remedy,  but  that  the  law  of  slavery  is  a  law  in  invilum, 
and  when  a  parly  gets  out  of  the  territory,  where  it  pre¬ 
vails,  and  under  the  protection  of  another  power,  without 
any  wrongful  act  done  by  the  parly  giving  that  protec¬ 
tion,  the  right  of  the  master,  which  is  founded  on  the  muni¬ 
cipal  law  of  the  place  only,  does  not  continue.  So  in 
speaking  of  the  effect  of  bringing  a  slave  into  England, 
he  says,  he  ceases  to  be  a  slave  in  England,  only  because 
there  is  no  law,  which  sanctions  his  detention  in  slavery. 
Best  J..  declared  his  opinion  to  the  same  effect.  Slavery 
is  a  local  law,  therefore  if  a  man  wishes  to  preserve  his 
slaves,  let  them  attach  them  to  him  by  affection,  or  make 
fast  the  bars  of  their  prison,  or  rivet  well  their  chains,  for 
the  instant  they  get  beyond  the  limits,  where  slavery  is 
recognized  by  the  local  law,  they  have  broken  their  chains 
— they  have  escaped  from  their  prison,  and  are  free. 

That  slavery  is  a  relation  founded  in  force,  not  in  right, 
existing,  where  it  does  exist,  by  force  of  positive  law, 
and  not  recognized  as  founded  in  natural  right,  is  intimat¬ 
ed  by  the  definition  of  slavery  in  the  civil  law  ;  ‘  hervi - 


38 


Opinion  of  the  Court. 


tus  est  constilutio  juris  gentium,  qua  qiiis  dominio  alieno 
contra  naluram  subjicilur.’ 

Upon  a  general  review  of  llie  aulhnriiies,  and  upon  an 
application  of  the  well  established  principles  upon  tins 
subject,  we  think  they  fully  maintain  the  point  staled,  that 
though  slavery  is  contrary  to  natural  right,  to  the  princi¬ 
ples  of  justice,  humanity  and  sound  policy,  as  we  adopt 
them  and  found  our  own  law’s  upon  them,  yet  not  being 
contrary  to  the  laws  of  nations,  il  any  other  stale  or  com¬ 
munity  see  fit  to  establish  and  continue  slavery  by  law,  so 
far  as  the  legislative  power  of  that  country  extends,  we 
are  bound  to  take  notice  of  the  existence  of  those  laws, 
and  we  are  not  at  liberty  to  declare  and  hold  an  act  done 
within  those  limits,  unlawful  and  void,  upon  our  views  ol 
morality  and  policy,  which  the  sovereign  and  legislative 
power  of  the  place,  has  pronounced  to  be  lawful.  II 
therefore  an  unwarranted  interference  and  wrong  is  done 
by  our  citizens  to  a  foreigner,  acting  under  the  sanction  of 
such  laws,  and  within  their  proper  limits,  that  is  w  ithin  the 
local  limits  of  the  power  by  whom  they  are  thus  estab¬ 
lished,  or  on  the  high  seas,  which  each  and  every  nation 
has  a  right  in  common  w  ith  all  others  to  occupy,  our  law  s 
would  no  doubt  afford  a  remedy  against  the  wrong  done. 
So  in  pursuance  of  a  well  known  maxim,  that  in  the  con¬ 
struction  of  contracts,  the  lex  loci  contractus  shall  govern, 
if  a  person,  having  in  other  respects,  a  right  to  sue  in  our 
courts,  shall  bring  an  action  against  another,  liable  in  oth¬ 
er  respects  to  be  sued  in  our  courts,  upon  a  contract  made 
upon  the  subject  of  slavery  in  a  stale  where  slavery  is 
allowed  by  law,  the  law  here  would  give  tt  effect.  As 
if  a  note  of  hand  made  in  New  Orleans  were  sued  on  here, 
and  the  defence  should  be  that  it  was  on  a  bad  consider¬ 
ation,  or,  without  consideration,  because  given  for  the 
price  of  a  slave  sold,  it  may  well  be  admitted  that  such  a 
defence  could  not  prevail,  because  the  contract  was  a  le¬ 
gal  one  by  the  law  of  the  place  where  il  was  made. 

This  view  of  the  law  applicable  to  slavery,  marks 
strongly  the  distinction  betw  een  the  relation  of  master  and 
slave  as  established  by  the  local  law  of  particular  Slates, 
and  in  virtue  of  that  sovereign  power  and  independent 
authority,  which  each  independent  State  concedes  to  ev¬ 
ery  other,  and  those  natural  and  social  relations,  w  hich 
are  every  where  and  by  all  people  recognized,  and  w  hich, 
though  they  may  be  modified  and  regulated  by  municipal 
law,  are  not  founded  upon  it,  such  as  the  relation  of  pa¬ 
rent  and  child  and  husband  and  wife.  Such  also  is  the 
principle  upon  which  the  general  right  of  property  is 
founded,  being  in  some  form  universally  recognized  as  a 
natural  right,  independently  of  municipal  law. 

This  affords  an  answer  to  the  argument  drawn  from  the 
maxim,  that  the  right  of  personal  properly  follows  the 
person,  and  therefore,  where  by  the  law  of  a  place,  a 
person  there  domiciled  acquires  personal  property,  by  the 
comity  of  nations,  the  same  must  be  doemed  his  property 
every  where.  It  is  obvious,  that  if  this  were  true,  in  the 
extent  in  which  the  argument  employs  it,  if  slavery  exists 
any  where,  and  if  by  the  laws  of  any  place  a  property 
can  be  acquired  in  slaves,  the  law  of  slavery  must  extend 
to  every  place  where  such  slaves  may  be  carried.  The 
maxim  therefore  and  the  argument  can  apply  only  to 
those  commodities  which  are  every  where  and  by  all  na¬ 
tions,  treated  and  deemed  subjects  of  property,  llut  it  is 
not  speaking  with  strict  accuracy  to  say,  that  a  properly 
can  he  acquired  in  human  beings,  by  local  laws.  Each 
Stale  may,  for  its  own  convenience,  declare  that  slaves 
shall  be  deemed  properly,  and  that  the  relations  and  laws 
of  personal  chattels  shall  be  deemed  to  apply  to  them;  as 
for  instance,  that  they  may  be  bought  and  sold,  delivered, 
attached,  levied  upon,  that  trespass  will  lie  for  an  injury 
done  to  them,  or  trover  for  converting  them.  But  it  would 
be  a  perversion  of  terms  to  say,  that  such  local  laws  do  in 
fact  make  them  personal  properly  generally :  they  can 
only  determine,  that  (he  same  rules  o'f  law  shall  apply  to 
them  as  are  applicable  to  properly,  and  this  effect  will 
follow  only  so  far  as  such  laws  propiio  vigore  can  op¬ 
erate.  °  1 

The  same  doctrine  is  recognized  in  Louisiana.  In  the 
case  of  Lunsford  vs  Coquiilon,  14  Martin's  Rep.  401,  it 


is  thus  stated  ; — The  relation  of  owner  and  slave  in  the 
States  of  this  Union,  in  which  it  has  a  legal  existence,  is 
a  creature  of  the  municipal  law.  See  Story’s  Conflict  of 
Laws,  92,97. 

The  same  principle  is  declared  by  the  Court  in  Ken¬ 
tucky,  in  the  case  ol  Rankin  vs.  Lydia,  3  Marshall,  470, 
They  say,  slavery  is  sanctioned  by  the  laws  of  this  State; 
but  we  consider  this  as  a  right  existing  by  positive  law  of 
a  municipal  character,  without  foundation  in  the  law  of 
nature. 

The  conclusion  to  which  we  come  from  this  view  of  the 
law  is  this : 

That  by  the  general  and  now  well  established  law  of 
this  Commonwealth,  bond  slavery  cannot  exist,  because 
it  is  contrary  to  natural  right,  and  repugnant  to  numerous 
provisions  of  the  constitution  and  laws,  designed  to  secure 
the  liberty  and  personal  rights  of  all  persons  within  its 
limits  and  entitled  to  the  protection  of  the  laws. 

That  though  by  the  laws  of  a  foreign  Stale,  meaning  by 
“  foreign  ”  in  this  connection,  a  Stale  governed  by  its 
own  laws,  and  between  which  and  our  own,  there  is  no  de¬ 
pendence  one  upon  the  other,  but  which  in  this  respect  are 
as  independent  as  foreign  Stales,  a  person  may  acquire  a 
property  in  a  slave,  that  such  acquisition,  being  contrary 
to  natural  right,  and  effected  by  the  local  law,  is  dependent 
upon  such  local  law  for  its  existence  and  efficacy,  and  be¬ 
ing  contrary  to  the  fundamental  laws  of  the  Slate,  such 
general  right  of  property  cannot  be  exercised  or  recogniz¬ 
ed  here. 

That  as  a  general  rule,  all  persons  coming  within  the 
limits  of  a  Stale,  become  subject  to  all  its  municipal  laws, 
civil  and  criminal,  and  entitled  to  the  privileges,  which 
those  laws  confer;  that  this  rule  applies  as  well  to  blacks 
as  whites,  except  the  case  of  fugitives,  to  be  afterwards 
considered;  that  if  such  persons  have  been  slaves,  they  be¬ 
come  free,  not  so  much  because  any-  alteration  is  made  in 
their  status,  or  condition,  as  because  there  is  no  law, 
which  w  ill  warrant,  but  there  arc  laws,  if  they  choose  to 
avail  themselves  of  them,  which  prohibit  (heir  forcible  de¬ 
tention  or  forcible  removal. 

That  the  law  arising  from  the  comity  of  nations  cannot 
apply  ;  because  if  il  did,  it  would- follow  as  a  necessary 
consequence,  that  all  those  persons  who  by  force  of  local 
laws,  and  within  all  foreign  places  where  slavery  is  pcrmil- 
ed,  have  acquired  slaves  as  property,  might  bring  their 
slaves  here,  and  exercise  over  them  the  rights  and  power, 
which  an  owner  of  properly  might  exercise,  and  lor  any 
length  of  time,  shfirBof  acquiring  a  domicile;  that  such  ait 
application  of  the  law  would  be  wholly  repugnant  to  our 
laws,  entirely  inconsistent  with  our  policy,  and  our  funda¬ 
mental  principles,  and  is  therefore  inadmissible. 

Whether  if  a  slave  volunlaiily  brought  here  and  w  ith 
his  own  consent  returning  with  his  master,  would  resume 
his  condition  as  a  slave,  is  a  question  which  was  incident¬ 
ally  raised  in  the  argumenl,but  is  one  on  w  hich  we  are  not 
called  on  to  give  an  opinion  in  this  case, and  we  give  none. 
From  the  principle  above  stated,  on  which  a  slave  brought 
here  becomes  free,  to  w  it,  that  he  becomes  entitled  to  the 
protection  of  our  laws,  and  there  is  no  law  to  w  arrant  his 
forcible  arrest  and  removal,  it  would  seem  to  follow  as  a 
necessary  conclusion,  that  if  the  slave  waives  the  protec¬ 
tion  of  those  laws,  and  returns  to  the  state  w  here  he  is 
held  as  a  slave,  his  condition  is  not  changed. 

In  the  ease  Exparte  Grad,  2,  Haggard's  Ad.  R.  94, 
this  question  was  fully  considered  by  Sir  Wnt.  Scott,  in 
the  ease  of  a  slave  brought  from  the  West  Indies  to  Eng¬ 
land,  and  afterwards  voluntarily  returning  to  the  W.  In¬ 
dies;  and  he  held  that  she  was  rc-inslated  in  her  condi¬ 
tion  of  slavery. 

A  different  decision,  I  believe,  has  been  made  of  the 
question  in  some  of  the  L’nitcd  States  ;  but  for  the  reasons 
already  given,  il  is  not  necessary  to  consider  it  further 
here. 

The  question  has  thus  far  been  considered  ns  numeral 
one,  and  applicable  to  cases  of  slaves  brought  from  any 
foreign  state  or  country;  and  it  now  becomes  necessary  to 
consider  how  far  this  result  differs,  where  the  person  is 
claimed  as  a  slave  by  a  citizeu  of  another  state  of  this 


Opinion  of  the  Court. 


39 


Uni™.,  that  is,  liovv  the  question  as  between  citizens  of 
<lifiWeKt  states,  is  affected  by  the  provision  of  the  Consti¬ 
tution  and  laws  of  the  United  States. 

In  Article  4,  Sec.  2,  t lie  Constitution  declares  that  no 
jHirsou  held  to  service  or  labor  in  one  stale,  under  the  laws 
thereof,  escaping  into  another,  shall  in  consequence  of  any 
law  or  regulation  therein,  be  discharged  from  such  ser¬ 
vice  or  labor,  but  shall  be  delivered  up  on  claim  of  the 
party  to  whom  such  service  or  labor  may  be  due. 

The  law  of  Congress  made  in  pursuance  of  this  article 
provides,  that  when  any  person  held  to  labor  in  any  of  the 
United  Slates,  &,e.  shall  escape  into  any  oilier  of  the  said 
slates  or  territories,  the  person  entitled,  &c.  is  empowered 
to  arrest  the  fugitive,  and  upon  proof  made  that  the  person 
so  seized  under  the  law  of  the  stale,  from  which  he  or  she 
fled,  owes  service,  dec.  Act  of  Feb  12,1793. 

In  regard  to  these  provisions,  the  Court  are  of  opinion, 
that  as  by  the  general  law  of  this  Commonwealth,  slavery 
cannot  exist,  and  the  rights  and  powers  of  slave  owners 
cannot  be  exercised  therein  ;  the  effect  of  this  provision  in 
the  constitution  and  laws  of  the  United  States,  is  to  limit 
and  restrain  the  operation  of  this  general  rule,  so  far  as  it 
is  done  by  the  plain  meaning  and  obvious  intent  and  im¬ 
port  of  the  language  used,  and  no  further.  The  constitu¬ 
tion  and  law  manifestly  refer  to  the  case  of  a  slave  escap¬ 
ing  from  a  slate  where  he  owes  service  or  labor,  into 
another  state  or  territory.  He  is  termed  a  fugitive  from 
labor;  the  proof  to  be  made  is,  that  lie  owed  service  or 
labor,  under  the  laws  of  the  state  or  territory  from  which 
hejledj  and  the  authority  given  is  to  remove  sucli  fugitive 
to  the  state  from  which  he  fled.  This  language  can,  bv  no 
reasonable  construction ,  be  applied  to  the  case  of  a  slave 
who  has  not  fled  from  the  stale,  but  who  has  been  brought 
into  this  state  by  his  master. 

'The  same  coudu  ion  will  result  from  a  consideration  of 
the  well  known  circumstances  under  which  this  constitu¬ 
tion  was  formed,  lie  fore  the  adoption  of  the  constitution, 
the  slates  were  to  a  certain  extent,  sovereign  and  inde¬ 
pendent,  and  were  in  a  condition  to  settle  the  terms  upon 
which  they  would  form  a  more  perfect  union.  It  has  been 
contended  by  some  over-zealous  philanthropists,  that  such 
an  article  in  the  constitution  could  be  of  no  binding  force 
or  validity,  because  it  was  a  stipulation  contrary  to  natural 
right.  Hut  it  is  difficult  to  perceive  the  force  of  this  ob¬ 
jection.  It  lias  already  been  shown,  that  slavery  is  not 
contrary  to  the  Jaws  of  nations.  It  would  then  be  the  pro¬ 
per  subject  of  treaties  among  sovereign  and  independent 
powers.  Sapptse  instead  of  forming  the  present  constitu¬ 
tion,  or  any  other  confederation,  the  several  states  had  be¬ 
come  in  all  respects  sovereign  and  independent,  would  it 
not  have  been  competent  for  them  to  stipulate,  that  fugitive 
slaves  should  bo  mutually  restored,  and  to  frame  suitable 
regulations,  under  which  such  a  stipulation  should  be  car¬ 
ried  into  effect  ?  Such  a  stipulation  would  be  highly  im¬ 
portant  and  necessary  to  secure  peace  and  harmony  be¬ 
tween  adjoining  nations,  and  to  prevent  perpetual  collis¬ 
ions  and  border  wars.  It  would  be  no  encroachment  on 
the  rights  of  the  fugitive  ;  for  no  stranger  has  a  just  claim 
to  the  protection  of  a  foreign  stale  against  its  will,  espe¬ 
cially  tvlier*  a  claim  to  such  protection  would  be  likely  to 
‘nvolve  the  stale  in  war;  and  each  independent  state  has  a 

ght  to  delermiie  by  its  own  laws  and  treaties,  who  may 

une  to  reside  or  seek  shelter  within  its  limits.  Now  the 
constitution  of  the  United  Slates  partakes  both  of  the  na¬ 
ture  of  a  treaty  and  of  a  form  of  government.  It  regards 
the  states,  to  a  certain  extent,  as  sovereign  and  independ¬ 
ent  communities,  with  full  power  to  make  their  own  laws 
and  regulate  their  domestic  policy,  and  fixes  the  terms  up¬ 
on  which  their  intercourse  with  each  other  shall  be  con¬ 
ducted.  In  respect  to  foreign  relations,  it  regards  the  peo¬ 
ple  of  the  states  as  one  community,  and  constitutes  a  form 
#f  government  for  them.  It  is  well  known  that  when  this 
constitution  was  formed,  some  of  the  states  permitted  sla¬ 
very  and  the  slave  trade,  and  considered  them  highly  es¬ 
sential  to  their  interests,  and  that  some  other  states  had 
abolished  slavery  within  their  own  limits,  and  from  the 
principles  deduced  and  policy  avowed  by  them,  might 

5 


be  presumed  to  desire  to  extend  sucli  abolition  further.  Il 
was  therefore  manifestly  the  intent  and  the  object  of  one 
party  to  this  compact  to  enlarge,  extend  and  secure  as  far 
ns  possible,  the  rights  and  powers  of  the  owners  of  slaves,, 
within  their  own  limits,  as  well  as  in  other  slates,  and  of 
the  other  parly  to  limit  and  restrain  them.  Under  these 
circumstances  the  clause  in  question  was  agreed  on  and  in¬ 
troduced  into  the  constitution  ;  and  as  it  was  well  consid¬ 
ered.  as  it  was  intended  to  secure  future  peace  and  harmo¬ 
ny,  and  to  fix  as  precisely  as  language  could  do  it,  the 
limit  to  which  the  rights  of  one  party  should  be  exercised 
within  the  territory  of  the  other,  it  is  to  be  presumed  that 
they  selected  terms  intended  to  express  their  exact  and 
their  whole  meaning;  and  it  would  be  a  departure  from 
the  purpose  and  spirit  of  the  compact  to  put  any  other 
construction  upon  it  than  that  to  be  derived  from  the 
plain  and  natural  import  of  the  language  used.  Besides, 
this  construction  of  the  provision  in  the  constitution  gives 
to  it  a  latitude  sufficient  to  afford  effectual  security  to  the 
owners  of  slaves.  The  states  have  a  plenary  power  to 
make  all  laws  necessary  for  the  regulation  of  slavery  and 
the  rights  of  slave  owners,  whilst  the  slaves  remain  with¬ 
in  their  territorial  limits  ;  and  it  is  only  when  they  escape, 
without  the  consent  of  their  owners,  into  other  states, 
that  they  require  the  aid  of  other  states  to  enable  them  to 
regain  their  dominion  over  the  fugitives. 

But  this  point  is  supported  by  most  respectable  and  un¬ 
exceptionable  authorities. 

In  the  case  of  Butler  vs.  Hopper.  1  Wash.  C.  C.  Bop, 
499,  it  was  held  by  Mr.  Justice  Washington,  in  terms, 
that  the  provision  in  the  constitution  which  we  are  now 
considering,  does  not  extend  to  the  case  of  a  slave  volun¬ 
tarily  carried  l;v  li is  master  into  another  state,  and  there 
leaving  him  under  the  protection  of  some  lafv  declnritit? 
him  free.  In  this  case,  however,  the  master  claimed  to 
hold  the  slave  in  virtue  of  a  law  of  Pennsylvania,  which 
permitted  Members  of  Congress  and  sojourners,  to  retain 
their  domestic  slaves,  and  it  was  held  that  he  did  not 
bring  himself  within  either  branch  of  the  exception,  be¬ 
cause  he  had,  for  two  years  of  the  period,  ceased  to  be  a 
Member  of  Congress,  and  so  lost  the  privilege;  and  by 
having  become  n  resident  could  not  claim  as  a  sojourner. 
The  case  is  an  authority  to  this  point,  that  the  claimant 
of  a  slave,  to  avail  himself  of  the  provisions  of  the  con¬ 
stitution  and  laws  of  the  United  States,  must  bring  him¬ 
self  within  their  plain  and  obvious  meaning,  and  they  will 
not  he  extended  by  construction  ;  and  that  the  clause  in 
the  constitution  is  confined  to  the  case  of  a  slave  escap¬ 
ing  from  one  state  and  fleeing  to  another. 

But  in  a  more  recent  case,  the  point  was  decided  by  the. 
same  eminent  judge.  Ex  parte  Simmons,  4  Wash.  C.  C. 
P>.  3%.  It  was  an  application  for  a  certificate  under  §  3 
of  the  act  of  Feb.  12.1793.  He  held  that  both  the  con¬ 
stitution  and  laws  of  the  United  States  apply  only  to  fu¬ 
gitives.  escaping  from  one  state  and  fleeing  to  another, 
and  not  to  the  case  of  a  slave  voluntarily  brought  by  his 
master. 

Another  question  was  made  in  that  case,  whether  the 
slave  was  free  bv  the  laws  of  Pennsylvania,  which,  like 
our  own  in  effect,  liberate  slaves  voluntarily  brought  with¬ 
in  the  state,  but  there  is  an  exception  in  favor  of  Members 
of  Congress.  Foreign  Ministers  and  Consuls,  and  sojourn¬ 
ers  :  but  this  provision  is  qualified  as  to  sojourners  and 
persons  passing  through  the  state  in  such  manner  as  to  ex¬ 
clude  them  from  the  benefit  of  the  exception,  if  the  slave 
was  retained  in  the  state  longer  than  six  months.  The 
slave  in  that  case  having  been  detained  in  the  state  more 
than  six  months,  was  therefore  held  free. 

This  ease  is  an  authority  to  this  point; — the  general 
rule  being,  that  if  a  slave  is  brought  into  a  state  where  the 
laws  do  not  admit  slavery,  he  will  be  held  free,  the  per¬ 
son  who  claims  him  as  a  slave,  under  any  exception  or 
limitation  of  the  general  rule,  must  show  clearly  that  the 
case  is  within  such  exception. 

The  same  principle  was  substantially  decided  by  the 
state  court  in  the  same  stale  in  the  case  of  Ccmmomeeolth 
v.  Holloway,  2  Serg.  &  Rawle,  305.  Il  was  the  case  of 


40 


Opinion  of  the  Court. 


a  child- of  a  fugitive  slave,  born  in  Pennsylvania.  It  was 
held  that  the  constitution  of  the  U.  S.  was  not  inconsis¬ 
tent  with  the  law  of  Pennsylvania ;  that  as  the  law  and 
constitution  of  the  U.  S.  did  not  include  the  issue  of  fu¬ 
gitive  slaves  in  terms,  it  did  not  embrace  them  by  con¬ 
struction  or  implication.  The  court  considers  the  law  as 
applying  only  to  those  who  escape.  Yet  by  the  operation  of 
the  ruaxiin  which  obtains  in  all  the  states  wherein  slavery 
is  permitted  by  law,  partus  sequitur  ventrem,  the  offspring 
would  follow  the  condition  of  the  mother,  it  either  the 
rule  of  comity  contended  for  applied,  or  if  the  law  of  the 
United  States  could  be  extended  by  construction. 

The  same  decision  has  been  made  in  Indiana,  3  Ameri¬ 
can  Jurist,  404. 

In  Louisiana,  it  has  been  held,  that  if  a  person  with  a 
slave,  goes  into  a  state  to  reside  where  it  is  declared  that 
slavery  shall  not  exist,  for  ever  so  short  a  time,  the  slave 
ipso  facto  becomes  free,  and  will  be  so  adjudged  and  con¬ 
sidered  afterwards  in  all  other  states  ;  and  a  person  mov¬ 
ing  from  Kentucky  to  Ohio,  to  reside,  his  slaves  thereby 
became  free,  and  were  so  held  in  Louisiana.  This  case 
also  fully  recognises  the  authority  of  states  to  make  laws 
dissolving  the  relation  of  master  and  slave  ;  and  consid¬ 
ers  the  special  limitation  of  the  general  power,  bv  the 
federal  constitution,  as  a  forcible  implication  in  proof  of 
the  existence  of  such  general  power.  Lunsford  v.  Co- 
quUlon,  14  Martin’s  Rep.  465. 

And  in  the  above  cited  case  from  Louisiana,  it  is  very 
significantly  remarked,  that  such  a  construction  of  the 
constitution  and  law  of  the  United  States  can  work  injury 
to  no  one,  for  the  principle  acts  only  on  the  willing  and 
volenti  non  fit  injuria. 

The  same  rule  of  construction  is  adopted  in  analogous 
cases  in  other  countries,  that  is.  where  an  institution  is 
forbidden,  but  where  for  special  reasons  and  to  a  limited 
extent  such  prohibition  is  relaxed,  the  exemption  is  to  be 
construod  strictlv.  and  whoever  claims  the  exemption, 
must  show  himself  clearly  within  it,  and  where  the  facts 
do  not  bring  the  case  within  the  exemption,  the  general 
rule  has  its  effect. 

By  a  general  law  of  France,  all  persons  inhabiting  or 
being  within  the  territorial  limits  of  France  are  free.  An 
edict  was  passed  by  Louis  XIV’.  called  ‘  Lc  Code  JNoir,’ 
respecting  slavery  in  the  colonies.  In  1716,  an  edict  was 
published  hy  Louis  XV,  concerning  slavery  in  the  colo¬ 
nies,  and  reciting  among  other  things,  that  many  of  the 
colonists  were  desirous  of  bringing  their  slaves  into 
France,  to  have  them  confirmed  in  the  principles  of  re¬ 
ligion,  and  to  be  instructed  in  various  arts  and  handicrafts, 
from  which  the  colonists  would  derive  much  benefit,  on 
the  return  of  the  slaves,  but  that  many  of  the  colonists 
feared  that  their  slaves  would  pretend  to  be  free  on  their 
arrival  in  France,  from  which  their  owners  would  sustain 
considerable  loss,  and  be  deterred  from  pursuing  an  object 
at  once  so  pious  and  useful.  The  edict  then  provides  a 
series  of  minute  regulations  to  be  observed  both  before 


their  departure  from  the  West  Indies,  and  on  their  arrival 
in  France,  and  if  all  these  regulations  are  strictly  com¬ 
plied  with,  the  negroes  so  brought  over  to  France  shall! 
not  thereby  acquire  any  right  to  their  freedom,  but  shall! 
be  compellable  to  return  ;  but  if  the  owners  shall  neglect, 
to  comply  with  the  prescribed  regulations,  the  negroes 
shall  become  free,  and  the  owners  shall  lose  all  property 
in  them.  20  Howell’s  State  Trials,  15,  note. 

The  Constitution  and  laws  of  the  United  States,  then; 
are  confined  to  cases  of  slaves  escaping  from  other  states 
and  coming  within  the  limits  of  this  state  without  tHe- 
consent  and  against  the  will  of  their  masters,  and  cannot 
by  any  sound  construction  extend  to  a  case  where  the 
slave  does  not  escape  and  does  not  come  within  the  lim¬ 
its  of  this  state  against  the  will  of  the  master,  but  by  his 
own  act  and  permission.  This  provision  is  to  be  constru¬ 
ed  according  to  its  plain  terms  and  import,  and  cannot  be 
extended  beyond  this,  and  where  the  case  is  not  that  of' 
an  escape,  the  general  rule  shall  have  its  effect.  It  is  up¬ 
on  these  grounds,  we  are  of  opinion,  that  an  owner  of  a 
slave  in  another  state  w  here  slavery  is  warranted  by  law, 
voluntarily  bringing  such  slave  into  this  state,  has  no  au¬ 
thority  to  detain  him  against  his  will,  or  to  carry  him  out 
of  the  state  against  his  consent,  for  the  purpose  of  being 
held  in  slavery. 

This  opinion  is  not  to  be  considered  as  extending  to  a 
case,  where  the  owner  of  a  fugitive  slave  having  produced 
a  certificate  according  to  the  law  of  the  United  States,  is 
bona  fide  removing  such  slave  to  his  own  domicil,  and  in 
so  doing  passes  through  a  free  state  ;  where  the  law  con¬ 
fers  a  right -or  favor,  by  necessary  implication  it  gives  the 
means  of  executing  it.  Nor  do  we  give  any  opinion  upon 
the  case,  where  an  owner  of  a  slave  i«  one  state,  is  bt  na 
fide  removing  to  another  state  where  slavery  is  allowed, 
and  in  so  doing  necessarily  passes  through  a  free  state,  or 
arrives  by  accident  or  necessity  he  Is  compellea  to  touch 
or  land  therein,  remaining  no  longer  than  necessary.  Our 
geographical  position  exempts  us  from  the  probable  neces¬ 
sity  of  considering  such  a  case,  and  we  give  no  opinion 
respecting  it. 

The  child  who  is  the  subject  of  this  habeas  corpus,  be¬ 
ing  of  too  tender  years  to  have  any  will  or  give  nnv  con¬ 
sent  to  be  removed,  and  her  mother,  being  a  slave  and 
having  no  will  of  her  own  and  no  power  to  art  for  her 
child,  she  is  necessarily  left  in  tl  e  enstodv  of  the  law. 
The  respondent  having  claimed  the  enstodv  of  the  rhild, 
in  behalf  of  Mr.  and  Mrs.  Slater,  who  claim  the  right  to 
carry  her  back  to  Louisiana,  to  he  held  in  a  state  of  slave¬ 
ry,  we  are  of  opinion  that  his  custody  is  not  to  be  deemed 
by  the  Court  a  proper  and  lawful  custody. 

Under  a  suggestion  made  in  the  outset  of  this  inquiry, 
that  a  probate  guardian  would  probably  be  appointed,  we 
shall  for  the  present  order  the  child  into  temporary  cus¬ 
tody,  to  give  time  for  an  application  to  be  made  to  the 
Judge  of  Probate. 

[The  Court  were  unanimous  in  the  above  opinion.] 


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